Ethical Issues of the 21st Century

e-mail, now nearly ubiquitous, has developed at warp speed as a communications tool since its advent in the mid-1960s. An otherwise anonymous software engineer, Ray Tomlinson, introduced the world to the “@” sign, which was falling so far into disfavor that it was near typographical extinction when Tomlinson rescued it from its imminent place in the scrap heap of communications history, alongside carbon paper, mimeograph machines, and God forbid, onion skin paper. The choice was made to distinguish the names of users and their machines. See “E-mail,” http://en.wikipedia.org/wiki/E-mail. Today, of course, millions, if not billions, of people around the world use e-mail to communicate continuously with each other, and lawyers are no exception; many times in simultaneous conversations. The instant message can be the instant ethical problem, for it is true that e-mail has become the preferred method of communication between lawyers and their clients. Here is where the ethical snare lies in surreptitious wait.

While lawyers have attained a strong understanding of the ethical rules, as one commentary puts it, “surrounding postal mail and telephonic communications ' e-mail is relatively new to the law.” See Christopher J. Wesser, Ethical Considerations and the Use of E-mail, 49 DRIFTD 68, For the Defense, February, 2007. Rule 1.6 of the Model Rules of Professional Conduct (the “Model Rules”), as well as its state-level counterparts, protects client confidences, establishing a “duty to prevent confidential communications from being misdirected or otherwise revealed to third-parties.” Wesser, supra. Although application of these rules has become relatively stable and predictable in the context of postal mail and the telephone, its application to e-mail is not as straightforward. Indeed, it is fair to say that the situation with e-mail is fluid. E-mails are typically sent in unencrypted “plain text” and pass through numerous servers controlled by third parties, and facially, at least, do not have the same procedural indicia of confidentiality as more traditional methods of communication.

Application of Rule 1.6

The uncertainty surrounding the application of Rule 1.6 to e-mail, all too unfortunately, does not render that Rule inapplicable. Very much to the contrary, many state ethics opinions have ruled that it is applicable. The mode of transmitting confidential information, in other words, does not diminish the ethical requirements of maintaining confidentiality. Local ethics authorities have developed some general principles concerning confidential communications by e-mail, based upon local variants of the Model Rule. See discussion of numerous examples in, e.g., West Litigation Management Handbook, '6:25 (2007). These opinions distinguish between encrypted and unencrypted e-mail communications, and between e-mail sent by a direct, computer-to-computer connection and e-mail sent via the Internet.

For example, apparently at one extreme is Iowa, where an advisory opinion states that an attorney “should obtain the consent of the client prior to communicating” via e-mail. Iowa Bar Ass'n Op. 1997-1; Mo. Bar Ass'n Informal Advisory Opin. 970230. This may justify Iowa's nickname as the Hawkeye State, for no other state appears to be so vigilant in the supervision of e-mail communications to clients. At the opposite extreme, in Alaska, an advisory opinion stipulates that “an attorney should use good judgment and discretion with respect to the sensitivity and confidentiality of electronic messages to the client ' and the client should be advised ' that the confidentiality of unencrypted e-mail is not assured.” Alaska Bar Ass'n Eth. Comm. Opin. 98-2. And in New York City, the Bar Association has opined that an attorney does not need to encrypt e-mails addressed to clients in order to comply with the confidentiality requirement. See Formal Opinion No. 1998-2, Association of the Bar of the City of New York Committee on Professional and Judicial Ethics.

The ABA's Stance

The American Bar Association Committee on Ethics and Professional Responsibility, one of the leading committees in this area, took an even stronger position validating the use of e-mail in an Opinion rendered in 1999. That Committee expressed the view that “e-mail communications ' pose no greater risk of interception or disclosure than other modes of communication commonly relied upon as having a reasonable expectation of privacy.” ABA Formal Opin. 99-413. As a result, the Committee concluded that “a lawyer sending confidential information by unencrypted e-mail does not violate Rule 1.6(a) ' because there is a reasonable expectation of privacy in its use.” Id. While there is some skepticism concerning the predicate for the conclusion inasmuch as many of us deem the risk of compromise to the confidentiality of e-mails far greater than, say, the interception of snail mail communications, the Opinion does offer a measure of comfort to the general use of e-mail communications.

The ABA Committee's Opinion makes it particularly clear that it is critical, in determining “whether it is appropriate for attorneys to send client communications via e-mail,” to inquire whether there is an “expectation of privacy in routine, unencrypted e-mail.” Wesser, supra. By issuing its Opinion, the ABA was expressly attempting to “harmonize a standard regarding the use of unencrypted e-mail.” Id. The Committee determined that all types of e-mail systems employ a sufficient level of safeguards to minimize the risk of interception. The issue, though, is far from being free from doubt. Careful practitioners and firms should assure themselves about the safeguards present in their e-mail systems to protect the integrity of their communications.

Attorney-Client Privilege

Another ethical issue related to e-mail stems from the relationship between the attorney-client privilege and the ubiquitous threat of inadvertent disclosure. Given the high number of e-mails that lawyers exchange with clients, there can scarcely be a shock that inadvertent disclosure of confidential information occurs. The circumstances surrounding the Eli Lilly incident mentioned earlier represents only a recent and well-publicized example. The fact pattern of the matter, however, is hardly unique. It is important to recognize that the consequences of the inadvertent disclosure may be far more significant and damaging than the admittedly dreadful embarrassment caused by the disclosure. Inadvertent disclosure of an e-mail may lead to an attorney waiving the attorney-client privilege, even though the client had not authorized the disclosure. The consequences of prejudicing the client's right to protect its privilege are too apparent to require extensive elaboration.

The Supreme Court has held that the attorney-client privilege generally “protects the client from compelled disclosure of communications with his or her professional legal adviser made in confidence, unless the client has waived the privilege.” See Todd Flaming, Internet E-mail and the Attorney-Client Privilege, 85 Ill. B.J. 183, 184 (1997). In Upjohn Co. v. United States, the Supreme Court acknowledged that “the attorney-client privilege was designed to encourage full and frank communication between attorneys and their clients.” 449 U.S. 383, 389 (1981); see also Gopal S. Patel, E-mail Communication and the Attorney-Client Privilege: An Ethical Quagmire, 26 Whittier L. Rev. 685, 687 (2004).

More specifically, the important elements underlying the privilege are easily summarized: 1) legal advice is sought; 2) from a professional legal adviser acting in his capacity as such; 3) the communications relating to that purpose; 4) made in confidence by the client; 5) are currently permanently protected; 6) from disclosure by himself or by the legal adviser; 7) so long as the privilege is not waived. The client owns the privilege, and, therefore, only the client has the authority to voluntarily waive it. An attorney, however, can involuntarily or inadvertently waive it, such as by sending an e-mail to the wrong person, or by “replying all” instead of just replying to a single individual in an e-mail. The attorney, after all, is the client's agent, whose acts are attributable to the principal, i.e., the client. This is the nub of the difficulty.

The first question to be examined in determining the availability of the attorney-client privilege is whether e-mail communications are made “in confidence.” The Electronic Communications Privacy Act of 1986 (“ECPA”), 18 U.S.C. ' 2510, and parallel state electronic communications privacy statutes support the conclusion that e-mail communications should be regarded as privileged because of their security in transmission. For example, the ECPA provides that
“[n]o otherwise privileged ' electronic communication intercepted in accordance with, or in violation of, the provisions of this chapter, shall lose its privileged character.” 18 U.S.C.
' 2517(4). Similarly, New York CPLR ' 4548 states that “no communication privileged under this article shall lose its privileged character for the sole reason that it is communicated by electronic means ' ” However, these general rules do not directly address circumstances, such as inadvertent disclosure of an e-mail communication, which may constitute a waiver of the attorney-client privilege. Patel, supra, at 688.

Courts in a number of cases have concluded that a sender or recipient of e-mail has a reasonable expectation of privacy in such communications. For example, in Dunlap v. County of Inyo, the court opined that “we reasonably expect privacy in our ' e-mail messages” despite the fact that it is a technology “of questionable privacy.” 1997 U.S. App. LEXIS 19249 (9th Cit., June 10, 1997). Further, in United States. v. Keystone Sanitation Co., the court noted that “e-mail communications over a private network or closed system provide a reasonable expectation of privacy so that inadvertent or intentional interception would have no effect on confidentiality.” 903 F. Supp. 803 (M.D. Pa. 1995). In United States v. Maxwell, it was determined that “e-mail stored on a commercial network ' [is subject] to a reasonable expectation of privacy because there was virtually no risk that [the] computer transmissions could be received by anyone other than the intended recipients.” 42 M.J. 568 (A.F.C.C.A. 1995), rev'd on other grounds, 45 M.J. 406 (C.A.A.F. 1996). One District Court, in ACLU v. Reno, in its broad-ranging review of Internet technology, noted that “unlike postal mail, simple e-mail generally is not 'sealed' or secure, and can be accessed or viewed on intermediate computers between the sender and the recipient (unless the message is encrypted).” 929 F. Supp. 824, 834 (E.D. Penn. 1996).

Potential Waiver

Once it is determined whether or not an e-mail communication is covered under the attorney-client privilege, the issue of a potential waiver involved with an inadvertent disclosure can be addressed under the rules developed for such disclosures in more traditional settings. Of course, it may be the conduct of the client that causes the loss of the privilege in the case of e-mail communications. A number of recent cases have dealt with situations in which clients have sent private attorney-client communications through an employer's e-mail system. See In re Asia Global Crossing, 322 B.R. 247 (Bankr. S.D.N.Y. 2005) (articulating a four-part test for determining whether use of the employer's e-mail system to send private attorney-client communications constitutes waiver) and Scott v. Beth Israel Medical Center, 17 Misc. 3d 934; 847 N.Y.S.2d 436 (Sup. Ct. N.Y. Cty 2007) (applying the four-part test). “Currently, there is a jurisdictional split with regard to whether an inadvertent disclosure of information by an attorney amounts to a waiver of the attorney-client privilege.” Patel, supra, at 692. Courts employ three approaches when deciding the issue: the traditional, the limited waiver, and the intermediate. See Julie Rubin, The Impact of E-mail on the Lawyer's Duty of Confidentiality, 36 Md. B.J. 56, 56 (Aug. 2003).

Under the traditional view, any disclosure, regardless of whether it was inadvertent or not, will result in the loss of the attorney-client privilege. The D.C. Circuit has held that “confidentiality of important information should be jealously guarded by the holder of the privilege.” In Re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989); see also Patel, supra, at 692. This rigid approach exacts a draconian penalty for what may be an innocent, indeed commonplace, mistake.

The second approach often employed by courts is the limited waiver approach, which protects the privilege even if the disclosure is inadvertent. Johnson v. Sea-Land Serv., Inc., 2001 WL 897185 at * 6 (S.D.N.Y., Aug. 9, 2001); Bank Brussels Lambert v. Credit Lyonnaise, 160 F.R.D. 437, 446 (S.D.N.Y. 1995); see also Patel, supra, at 693. This is so because the privilege belongs to the client, and, therefore, only the client can waive it. Id. However, the Southern District of New York has held that even though the information in an e-mail may be protected by the privilege, “opposing counsel would not be disqualified simply because she read the e-mail.” U.S. v. Stewart, 294 F. Supp.2d 490 (S.D.N.Y. 2003); see also Patel, supra, at 694.

The final approach, followed by the majority of courts, is known as the intermediate approach. Under this approach, courts analyze cases on a fact-specific basis to determine whether or not the privilege has been waived. An inadvertent disclosure will only result in a waiver if the producing party failed to take reasonable precautionary steps to protect confidentiality. Put simply, this is a very practical approach, recognizing the frailty of human conduct and the extreme consequence that may follow an otherwise innocent mistake. Many courts utilize the following factors: “1) the reasonableness of the precautions taken to prevent the inadvertent disclosure; 2) the number of inadvertent disclosures; 3) the extent of the disclosure; 4) any delay and measure taken to rectify the disclosure; and 5) whether the overriding interests of justice would or would not be served by relieving a party of its error.” Id.

Solutions

While there may not be a universally accepted solution to the problem of inadvertent disclosure of e-mail communications, one that is often suggested is encryption. The use of encryption is no doubt a practical solution to issues of confidentiality in many environments, and may even be an imperative in certain circumstances. See J.T. Westermeier, Ethics and the Internet, 17 Geo. J. Legal Ethics 267, 300-301 (2004). However, the routine use of encryption in all communications between attorneys and clients has not yet overcome the practical difficulties that include the lack of sufficient proliferation of compatible encryption technology and education of both attorneys and clients on its proper use. This comment is in addition to the obvious difficulty in educating persons on the use of encryption technology generally.

Part Two of this article will discuss ethical issues relating to e-discovery and social networking and blogs.

Frederick L. Whitmer is a partner of the international law firm Thelen Reid Brown Raysman & Steiner LLP and one of the co-heads of the Intellectual Property Litigation Practice Group at the firm. He has his principal office in New York and can be reached at [email protected]. Benjamin D. Goldberg is an associate at the firm.

This past January, when The New York Times published that Eli Lilly & Co. was engaged in settlement discussions with the government regarding the company's alleged marketing improprieties related to its Zyprexa' schizophrenia drug, the company accused federal officials of leaking the information to the press. They were misguided. To Lilly's surprise, an internal investigation revealed that the unlikely and unintentional source of the press leak was not the government at all. The “leaker” was one of Lilly's own outside counsel. How did this happen? The lawyer, doing what each of us has done at one time or another, writing confidential information in an e-mail to co-counsel at another firm (or a client), inadvertently sent the e-mail to a reporter at the Times because of the remarkably convenient, yet insidiously dangerous, “auto-complete” feature of e-mail. That feature proposed the recipient name “Berenson, Alex,” instead of “Berenson, Bradford,” the intended recipient of the e-mail. Berenson the reporter claimed that even though he received the e-mail from the Lilly lawyer, he actually developed his detailed information from other sources. That is cold comfort to the author of the e-mail, and probably even colder comfort to the client whose activity and strategy was disclosed.

This “there-but-for-the-grace-of-God” story highlights the potential ethical trapdoors into which even careful lawyers can fall through the gremlins of technology, and how, in a world filled with an ever-evolving technology, it can transmute a moment's inattention into an embarrassing ' and perhaps costly ' mistake. Reputation and integrity are among the most sensitive of assets; built over a lifetime, they can vanish in a moment. This article addresses various ethical issues faced by attorneys coping with those technologies, including e-mail, e-discovery, blogging, and social networking sites. And for many plaintiff-oriented lawyers, these technological tools can become the newest form of legal alchemy, turning factual lead into legal gold.

e-Mail and Confidentiality

e-mail, now nearly ubiquitous, has developed at warp speed as a communications tool since its advent in the mid-1960s. An otherwise anonymous software engineer, Ray Tomlinson, introduced the world to the “@” sign, which was falling so far into disfavor that it was near typographical extinction when Tomlinson rescued it from its imminent place in the scrap heap of communications history, alongside carbon paper, mimeograph machines, and God forbid, onion skin paper. The choice was made to distinguish the names of users and their machines. See “E-mail,” http://en.wikipedia.org/wiki/E-mail. Today, of course, millions, if not billions, of people around the world use e-mail to communicate continuously with each other, and lawyers are no exception; many times in simultaneous conversations. The instant message can be the instant ethical problem, for it is true that e-mail has become the preferred method of communication between lawyers and their clients. Here is where the ethical snare lies in surreptitious wait.

While lawyers have attained a strong understanding of the ethical rules, as one commentary puts it, “surrounding postal mail and telephonic communications ' e-mail is relatively new to the law.” See Christopher J. Wesser, Ethical Considerations and the Use of E-mail, 49 DRIFTD 68, For the Defense, February, 2007. Rule 1.6 of the Model Rules of Professional Conduct (the “Model Rules”), as well as its state-level counterparts, protects client confidences, establishing a “duty to prevent confidential communications from being misdirected or otherwise revealed to third-parties.” Wesser, supra. Although application of these rules has become relatively stable and predictable in the context of postal mail and the telephone, its application to e-mail is not as straightforward. Indeed, it is fair to say that the situation with e-mail is fluid. E-mails are typically sent in unencrypted “plain text” and pass through numerous servers controlled by third parties, and facially, at least, do not have the same procedural indicia of confidentiality as more traditional methods of communication.

Application of Rule 1.6

The uncertainty surrounding the application of Rule 1.6 to e-mail, all too unfortunately, does not render that Rule inapplicable. Very much to the contrary, many state ethics opinions have ruled that it is applicable. The mode of transmitting confidential information, in other words, does not diminish the ethical requirements of maintaining confidentiality. Local ethics authorities have developed some general principles concerning confidential communications by e-mail, based upon local variants of the Model Rule. See discussion of numerous examples in, e.g., West Litigation Management Handbook, '6:25 (2007). These opinions distinguish between encrypted and unencrypted e-mail communications, and between e-mail sent by a direct, computer-to-computer connection and e-mail sent via the Internet.

For example, apparently at one extreme is Iowa, where an advisory opinion states that an attorney “should obtain the consent of the client prior to communicating” via e-mail. Iowa Bar Ass'n Op. 1997-1; Mo. Bar Ass'n Informal Advisory Opin. 970230. This may justify Iowa's nickname as the Hawkeye State, for no other state appears to be so vigilant in the supervision of e-mail communications to clients. At the opposite extreme, in Alaska, an advisory opinion stipulates that “an attorney should use good judgment and discretion with respect to the sensitivity and confidentiality of electronic messages to the client ' and the client should be advised ' that the confidentiality of unencrypted e-mail is not assured.” Alaska Bar Ass'n Eth. Comm. Opin. 98-2. And in New York City, the Bar Association has opined that an attorney does not need to encrypt e-mails addressed to clients in order to comply with the confidentiality requirement. See Formal Opinion No. 1998-2, Association of the Bar of the City of New York Committee on Professional and Judicial Ethics.

The ABA's Stance

The American Bar Association Committee on Ethics and Professional Responsibility, one of the leading committees in this area, took an even stronger position validating the use of e-mail in an Opinion rendered in 1999. That Committee expressed the view that “e-mail communications ' pose no greater risk of interception or disclosure than other modes of communication commonly relied upon as having a reasonable expectation of privacy.” ABA Formal Opin. 99-413. As a result, the Committee concluded that “a lawyer sending confidential information by unencrypted e-mail does not violate Rule 1.6(a) ' because there is a reasonable expectation of privacy in its use.” Id. While there is some skepticism concerning the predicate for the conclusion inasmuch as many of us deem the risk of compromise to the confidentiality of e-mails far greater than, say, the interception of snail mail communications, the Opinion does offer a measure of comfort to the general use of e-mail communications.

The ABA Committee's Opinion makes it particularly clear that it is critical, in determining “whether it is appropriate for attorneys to send client communications via e-mail,” to inquire whether there is an “expectation of privacy in routine, unencrypted e-mail.” Wesser, supra. By issuing its Opinion, the ABA was expressly attempting to “harmonize a standard regarding the use of unencrypted e-mail.” Id. The Committee determined that all types of e-mail systems employ a sufficient level of safeguards to minimize the risk of interception. The issue, though, is far from being free from doubt. Careful practitioners and firms should assure themselves about the safeguards present in their e-mail systems to protect the integrity of their communications.

Attorney-Client Privilege

Another ethical issue related to e-mail stems from the relationship between the attorney-client privilege and the ubiquitous threat of inadvertent disclosure. Given the high number of e-mails that lawyers exchange with clients, there can scarcely be a shock that inadvertent disclosure of confidential information occurs. The circumstances surrounding the Eli Lilly incident mentioned earlier represents only a recent and well-publicized example. The fact pattern of the matter, however, is hardly unique. It is important to recognize that the consequences of the inadvertent disclosure may be far more significant and damaging than the admittedly dreadful embarrassment caused by the disclosure. Inadvertent disclosure of an e-mail may lead to an attorney waiving the attorney-client privilege, even though the client had not authorized the disclosure. The consequences of prejudicing the client's right to protect its privilege are too apparent to require extensive elaboration.

The Supreme Court has held that the attorney-client privilege generally “protects the client from compelled disclosure of communications with his or her professional legal adviser made in confidence, unless the client has waived the privilege.” See Todd Flaming, Internet E-mail and the Attorney-Client Privilege, 85 Ill. B.J. 183, 184 (1997). In Upjohn Co. v. United States, the Supreme Court acknowledged that “the attorney-client privilege was designed to encourage full and frank communication between attorneys and their clients.” 449 U.S. 383, 389 (1981); see also Gopal S. Patel, E-mail Communication and the Attorney-Client Privilege: An Ethical Quagmire, 26 Whittier L. Rev. 685, 687 (2004).

More specifically, the important elements underlying the privilege are easily summarized: 1) legal advice is sought; 2) from a professional legal adviser acting in his capacity as such; 3) the communications relating to that purpose; 4) made in confidence by the client; 5) are currently permanently protected; 6) from disclosure by himself or by the legal adviser; 7) so long as the privilege is not waived. The client owns the privilege, and, therefore, only the client has the authority to voluntarily waive it. An attorney, however, can involuntarily or inadvertently waive it, such as by sending an e-mail to the wrong person, or by “replying all” instead of just replying to a single individual in an e-mail. The attorney, after all, is the client's agent, whose acts are attributable to the principal, i.e., the client. This is the nub of the difficulty.

The first question to be examined in determining the availability of the attorney-client privilege is whether e-mail communications are made “in confidence.” The Electronic Communications Privacy Act of 1986 (“ECPA”), 18 U.S.C. ' 2510, and parallel state electronic communications privacy statutes support the conclusion that e-mail communications should be regarded as privileged because of their security in transmission. For example, the ECPA provides that
“[n]o otherwise privileged ' electronic communication intercepted in accordance with, or in violation of, the provisions of this chapter, shall lose its privileged character.” 18 U.S.C.
' 2517(4). Similarly, New York CPLR ' 4548 states that “no communication privileged under this article shall lose its privileged character for the sole reason that it is communicated by electronic means ' ” However, these general rules do not directly address circumstances, such as inadvertent disclosure of an e-mail communication, which may constitute a waiver of the attorney-client privilege. Patel, supra, at 688.

Courts in a number of cases have concluded that a sender or recipient of e-mail has a reasonable expectation of privacy in such communications. For example, in Dunlap v. County of Inyo, the court opined that “we reasonably expect privacy in our ' e-mail messages” despite the fact that it is a technology “of questionable privacy.” 1997 U.S. App. LEXIS 19249 (9th Cit., June 10, 1997). Further, in United States. v. Keystone Sanitation Co., the court noted that “e-mail communications over a private network or closed system provide a reasonable expectation of privacy so that inadvertent or intentional interception would have no effect on confidentiality.” 903 F. Supp. 803 (M.D. Pa. 1995). In United States v. Maxwell, it was determined that “e-mail stored on a commercial network ' [is subject] to a reasonable expectation of privacy because there was virtually no risk that [the] computer transmissions could be received by anyone other than the intended recipients.” 42 M.J. 568 (A.F.C.C.A. 1995), rev'd on other grounds, 45 M.J. 406 (C.A.A.F. 1996). One District Court, in ACLU v. Reno, in its broad-ranging review of Internet technology, noted that “unlike postal mail, simple e-mail generally is not 'sealed' or secure, and can be accessed or viewed on intermediate computers between the sender and the recipient (unless the message is encrypted).” 929 F. Supp. 824, 834 (E.D. Penn. 1996).

Potential Waiver

Once it is determined whether or not an e-mail communication is covered under the attorney-client privilege, the issue of a potential waiver involved with an inadvertent disclosure can be addressed under the rules developed for such disclosures in more traditional settings. Of course, it may be the conduct of the client that causes the loss of the privilege in the case of e-mail communications. A number of recent cases have dealt with situations in which clients have sent private attorney-client communications through an employer's e-mail system. See In re Asia Global Crossing, 322 B.R. 247 (Bankr. S.D.N.Y. 2005) (articulating a four-part test for determining whether use of the employer's e-mail system to send private attorney-client communications constitutes waiver) and Scott v. Beth Israel Medical Center , 17 Misc. 3d 934; 847 N.Y.S.2d 436 (Sup. Ct. N.Y. Cty 2007) (applying the four-part test). “Currently, there is a jurisdictional split with regard to whether an inadvertent disclosure of information by an attorney amounts to a waiver of the attorney-client privilege.” Patel, supra, at 692. Courts employ three approaches when deciding the issue: the traditional, the limited waiver, and the intermediate. See Julie Rubin, The Impact of E-mail on the Lawyer's Duty of Confidentiality, 36 Md. B.J. 56, 56 (Aug. 2003).

Under the traditional view, any disclosure, regardless of whether it was inadvertent or not, will result in the loss of the attorney-client privilege. The D.C. Circuit has held that “confidentiality of important information should be jealously guarded by the holder of the privilege.” In Re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989); see also Patel, supra, at 692. This rigid approach exacts a draconian penalty for what may be an innocent, indeed commonplace, mistake.

The second approach often employed by courts is the limited waiver approach, which protects the privilege even if the disclosure is inadvertent. Johnson v. Sea-Land Serv., Inc., 2001 WL 897185 at * 6 (S.D.N.Y., Aug. 9, 2001); Bank Brussels Lambert v. Credit Lyonnaise , 160 F.R.D. 437, 446 (S.D.N.Y. 1995); see also Patel, supra, at 693. This is so because the privilege belongs to the client, and, therefore, only the client can waive it. Id. However, the Southern District of New York has held that even though the information in an e-mail may be protected by the privilege, “opposing counsel would not be disqualified simply because she read the e-mail.” U.S. v. Stewart , 294 F. Supp.2d 490 (S.D.N.Y. 2003); see also Patel, supra , at 694.

The final approach, followed by the majority of courts, is known as the intermediate approach. Under this approach, courts analyze cases on a fact-specific basis to determine whether or not the privilege has been waived. An inadvertent disclosure will only result in a waiver if the producing party failed to take reasonable precautionary steps to protect confidentiality. Put simply, this is a very practical approach, recognizing the frailty of human conduct and the extreme consequence that may follow an otherwise innocent mistake. Many courts utilize the following factors: “1) the reasonableness of the precautions taken to prevent the inadvertent disclosure; 2) the number of inadvertent disclosures; 3) the extent of the disclosure; 4) any delay and measure taken to rectify the disclosure; and 5) whether the overriding interests of justice would or would not be served by relieving a party of its error.” Id.

Solutions

While there may not be a universally accepted solution to the problem of inadvertent disclosure of e-mail communications, one that is often suggested is encryption. The use of encryption is no doubt a practical solution to issues of confidentiality in many environments, and may even be an imperative in certain circumstances. See J.T. Westermeier, Ethics and the Internet, 17 Geo. J. Legal Ethics 267, 300-301 (2004). However, the routine use of encryption in all communications between attorneys and clients has not yet overcome the practical difficulties that include the lack of sufficient proliferation of compatible encryption technology and education of both attorneys and clients on its proper use. This comment is in addition to the obvious difficulty in educating persons on the use of encryption technology generally.

Part Two of this article will discuss ethical issues relating to e-discovery and social networking and blogs.

Frederick L. Whitmer is a partner of the international law firm Thelen Reid Brown Raysman & Steiner LLP and one of the co-heads of the Intellectual Property Litigation Practice Group at the firm. He has his principal office in New York and can be reached at [email protected]. Benjamin D. Goldberg is an associate at the firm.