Does Attorney-Client Privilege Protect Client e-Mail?

Clients are increasingly communicating with their attorneys by e-mail. They find this type of communication to be an easy and fast means to provide their attorneys with information important to the protection of their legal interests and obtain advice relative thereto. While clients surely believe that their e-mail communications involving legal matters are protected by the attorney-client privilege equal to a mailed letter, e-mail communications pose confidentiality and waiver risks on the part of clients. Attorneys must advise their clients of these risks, and advise their clients on how to avoid them. Several recent decisions are instructive in that regard.

Statutory Assurance of Privilege

First, it must be kept in mind that e-mail communication has a statutory assurance of privilege and the endorsement of an ethics opinion. CPLR 4548 provides that all communications privileged under Article 45 of the CPLR do not lose their privileged status merely because they are communicated by e-mail. See Alexander, Practice Commentaries, McKinney's Cons. Law of NY, Book 7B, CPLR 4548; Martin, Capra & Rossi, New York Evidence Handbook ' 5.1.7, at 304-305 (2d ed 2003). While CPLR 4548 addresses e-mail communication in the context of the rules of evidence, it does not address the attorney's separate ethical obligation to avoid disclosure of a client's confidences and secrets. New York Rules of Professional Conduct Rule 1.6.

The New York State Bar Association Committee on Professional Ethics has issued a formal opinion, Opinion 709 (1998), providing that an unencrypted e-mail is an acceptable means of transmitting confidential information. However, the opinion also cautioned that when an attorney is on notice that the confidential information being transmitted is “of such an extraordinarily sensitive nature that it is reasonable to use only a means of communication that is completely under the [attorney's] control, the [attorney] must select a more secure means of communication than unencrypted Internet e-mail.”

Confidentiality

The attorney-client privilege generally extends to any “confidential communication made between the attorney or his or her employee and the client in the course of professional employment.” CPLR 4503(a). A communication will not be confidential simply because it is made to an attorney or client. Something more is required, namely the communication must be given in confidence; and the client must reasonably understand it to be so given.
See Prince, Richardson on Evidence ' 5-204 (Farrell 11th ed). Thus, a communication between a client and his or her attorney in the presence of a third person is not privileged unless the presence of the third person is reasonably necessary for the transmission of the communication, nor would a communication between the client and the attorney be privileged where the client in the circumstances had no reasonable expectation of confidentiality, a point made by the Court of Appeals in People v. Osorio, 75 NY2d 80, 84 (1989). In such circumstances, the attorney “is permitted to testify not because the privilege has been waived, but because the communication, not having been made in confidence, was not privileged.” Baumann v. Steingester, 213 N.Y. 328, 333 (1915).

When one applies these standards to e-mail communications, an initial concern arises when the client is technology challenged and finds it necessary to obtain assistance from a third person to send or receive e-mail communications. In Green v. Beer, 2010 WL 3422723 (SDNY), Judge Kimba Wood addressed this concern. In Green, the son of the plaintiffs received e-mail communications from their counsel, which he then provided to his parents. As explained by the son, his involvement was necessary because his parents were, in essence, computer illiterate. Judge Wood held that the son's involvement with the receipt and transmission of e-mails to counsel did not defeat the privilege. In her view, the son's technical assistance was necessary, and, as he was acting as their agent, the parents still had a “reasonable expectation that the e-mail communications would remain confidential.” Green at *5. Support for this conclusion was also found in CPLR 4548, which additionally provides that the privilege is not defeated when “persons necessary for the delivery or facilitation of [an] electronic communication may have access to the content of the communication.”

Notably, Wood rejected the argument that so long as there were other confidential means of communication with counsel available, e-mail communication as assisted by the son, or others, could never be privileged. Recognizing that e-mail permits clients and their attorneys to engage in prompt communication, often regarding time-sensitive matters, the court found that public policy supported her conclusion in that a “client lacking proficiency in Internet technology should not be prevented from enjoying the advantages of e-mail correspondence.” Green at *5. Wood's public policy argument suggests strongly that the mere fact that the parents were assisted by their son, and not by a non-family member, was not a critical concern of hers; and that when the person providing the assistance is a non-family member, such as a friend or colleague, and there is a request to that person to keep communications accessed by that person confidential, the privilege will still attach.

The Client's Responsiblities

Another concern that arises involves what steps, if any, the client must take to ensure that e-mail communication is deemed confidential. This issue was addressed recently by the Appellate Division, 3rd Department, in Parnes v. Parnes, 80 A.D.3d 948 (3d Dept. 2011). In Parnes, when the parties began experiencing marital difficulties, the defendant husband contacted an attorney. He and his attorney exchanged e-mails discussing a strategy for the husband to gain advantage in future matrimonial and custody litigation.

After the plaintiff wife commenced a divorce action, she searched a desk in a room used as an office in the marital home, which desk contained her husband's papers. The parties, their nanny and babysitters all used that room. In the course of her search, the wife found a note containing the user name and password for the husband's e-mail account. She then used this information to gain access to the account, printed the e-mails between him and his attorney, and turned them over to her own attorney. The husband then moved to, among other things, preclude the wife from using any of the e-mails that contained privileged information.

The 3rd Department, in a thoughtful opinion by Justice William E. McCarthy, held the e-mails were privileged. After noting that they were communications made for the purpose of obtaining legal advice or services, the court held the communications were confidential. In so ruling, the court initially stated that the husband had taken reasonable steps to keep the e-mails on his computer confidential as he had set up a new password-protected e-mail account and only checked it from his workplace computer. In these circumstances, the husband had a reasonable expectation of confidentiality. Further, it was reasonable for him to expect that “no one would find the note and enter that information into the computer in a deliberate attempt to open, read and print his password-protected documents.” Parnes, 80 A.D.3d at 951. His leaving the information on the desk available to all was, in the court's view, mere carelessness that would not defeat his reasonable expectation of confidentiality.

What the Decision Means

Parnes certainly suggests that the client need not undertake Herculean efforts to preclude access to the client's e-mail account in order to ensure that the client's e-mail communications are deemed confidential. Thus, steps like adopting a password that would be difficult to guess, changing the password frequently, or preventing the use of special hacking software that can decipher the password are not necessary to establish the requisite confidentiality. Rather, all that is necessary is for the client to set up an e-mail account that is password protected, avoid the express disclosure of the password to others unless necessary for transmission or receipt of the e-mail, log off when finished, and not allow others to use the account.

Notwithstanding Parnes, clients should also be advised to make sure that their passwords are kept in a secure location, and not left in a location where they are readily accessible, with or without any snooping, as other courts may not be as forgiving as the Parnes court.

Willis v. Willis

The 2nd Department's decision in Willis v. Willis, 79 AD3d 1029 (2d Dept. 2010), confirms this advice. In Willis, the plaintiff commenced a defamation action against her former husband and his current wife based upon their conduct in sending an e-mail addressed to the plaintiff, which allegedly contained defamatory statements. After commencing the action, the plaintiff used the same e-mail account to communicate with her attorneys. The defendants moved to compel the plaintiff to produce those e-mails, contending they were not privileged communications.

The court declared that the e-mail communications were not confidential. The basis for this conclusion was that the plaintiff's children not only knew the password to her e-mail account, but also regularly used that account. In these circumstances there could be no “reasonable expectation of confidentiality.” Willis, 79 AD3d 1030. While the third persons involved were plaintiff's own children, this fact did not require a contrary conclusion as they were also the children of her husband/adversary, and they had unrestricted access to the plaintiff's attorney-client communications. While the court also noted that the children were not requested by the plaintiff to keep the e-mails confidential, its opinion suggests that even if such a request were made, the requisite confidentiality would still be absent.

Michael J. Hutter is a professor of law at Albany Law School, where he teaches Evidence and New York Practice, and is special counsel to Powers & Santola. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.

Clients are increasingly communicating with their attorneys by e-mail. They find this type of communication to be an easy and fast means to provide their attorneys with information important to the protection of their legal interests and obtain advice relative thereto. While clients surely believe that their e-mail communications involving legal matters are protected by the attorney-client privilege equal to a mailed letter, e-mail communications pose confidentiality and waiver risks on the part of clients. Attorneys must advise their clients of these risks, and advise their clients on how to avoid them. Several recent decisions are instructive in that regard.

Statutory Assurance of Privilege

First, it must be kept in mind that e-mail communication has a statutory assurance of privilege and the endorsement of an ethics opinion. CPLR 4548 provides that all communications privileged under Article 45 of the CPLR do not lose their privileged status merely because they are communicated by e-mail. See Alexander, Practice Commentaries, McKinney's Cons. Law of NY, Book 7B, CPLR 4548; Martin, Capra & Rossi, New York Evidence Handbook ' 5.1.7, at 304-305 (2d ed 2003). While CPLR 4548 addresses e-mail communication in the context of the rules of evidence, it does not address the attorney's separate ethical obligation to avoid disclosure of a client's confidences and secrets. New York Rules of Professional Conduct Rule 1.6.

The New York State Bar Association Committee on Professional Ethics has issued a formal opinion, Opinion 709 (1998), providing that an unencrypted e-mail is an acceptable means of transmitting confidential information. However, the opinion also cautioned that when an attorney is on notice that the confidential information being transmitted is “of such an extraordinarily sensitive nature that it is reasonable to use only a means of communication that is completely under the [attorney's] control, the [attorney] must select a more secure means of communication than unencrypted Internet e-mail.”

Confidentiality

The attorney-client privilege generally extends to any “confidential communication made between the attorney or his or her employee and the client in the course of professional employment.” CPLR 4503(a). A communication will not be confidential simply because it is made to an attorney or client. Something more is required, namely the communication must be given in confidence; and the client must reasonably understand it to be so given.
See Prince, Richardson on Evidence ' 5-204 (Farrell 11th ed). Thus, a communication between a client and his or her attorney in the presence of a third person is not privileged unless the presence of the third person is reasonably necessary for the transmission of the communication, nor would a communication between the client and the attorney be privileged where the client in the circumstances had no reasonable expectation of confidentiality, a point made by the Court of Appeals in People v. Osorio , 75 NY2d 80, 84 (1989). In such circumstances, the attorney “is permitted to testify not because the privilege has been waived, but because the communication, not having been made in confidence, was not privileged.” Baumann v. Steingester , 213 N.Y. 328, 333 (1915).

When one applies these standards to e-mail communications, an initial concern arises when the client is technology challenged and finds it necessary to obtain assistance from a third person to send or receive e-mail communications. In Green v. Beer, 2010 WL 3422723 (SDNY), Judge Kimba Wood addressed this concern. In Green, the son of the plaintiffs received e-mail communications from their counsel, which he then provided to his parents. As explained by the son, his involvement was necessary because his parents were, in essence, computer illiterate. Judge Wood held that the son's involvement with the receipt and transmission of e-mails to counsel did not defeat the privilege. In her view, the son's technical assistance was necessary, and, as he was acting as their agent, the parents still had a “reasonable expectation that the e-mail communications would remain confidential.” Green at *5. Support for this conclusion was also found in CPLR 4548, which additionally provides that the privilege is not defeated when “persons necessary for the delivery or facilitation of [an] electronic communication may have access to the content of the communication.”

Notably, Wood rejected the argument that so long as there were other confidential means of communication with counsel available, e-mail communication as assisted by the son, or others, could never be privileged. Recognizing that e-mail permits clients and their attorneys to engage in prompt communication, often regarding time-sensitive matters, the court found that public policy supported her conclusion in that a “client lacking proficiency in Internet technology should not be prevented from enjoying the advantages of e-mail correspondence.” Green at *5. Wood's public policy argument suggests strongly that the mere fact that the parents were assisted by their son, and not by a non-family member, was not a critical concern of hers; and that when the person providing the assistance is a non-family member, such as a friend or colleague, and there is a request to that person to keep communications accessed by that person confidential, the privilege will still attach.

The Client's Responsiblities

Another concern that arises involves what steps, if any, the client must take to ensure that e-mail communication is deemed confidential. This issue was addressed recently by the Appellate Division, 3rd Department, in Parnes v. Parnes , 80 A.D.3d 948 (3d Dept. 2011). In Parnes, when the parties began experiencing marital difficulties, the defendant husband contacted an attorney. He and his attorney exchanged e-mails discussing a strategy for the husband to gain advantage in future matrimonial and custody litigation.

After the plaintiff wife commenced a divorce action, she searched a desk in a room used as an office in the marital home, which desk contained her husband's papers. The parties, their nanny and babysitters all used that room. In the course of her search, the wife found a note containing the user name and password for the husband's e-mail account. She then used this information to gain access to the account, printed the e-mails between him and his attorney, and turned them over to her own attorney. The husband then moved to, among other things, preclude the wife from using any of the e-mails that contained privileged information.

The 3rd Department, in a thoughtful opinion by Justice William E. McCarthy, held the e-mails were privileged. After noting that they were communications made for the purpose of obtaining legal advice or services, the court held the communications were confidential. In so ruling, the court initially stated that the husband had taken reasonable steps to keep the e-mails on his computer confidential as he had set up a new password-protected e-mail account and only checked it from his workplace computer. In these circumstances, the husband had a reasonable expectation of confidentiality. Further, it was reasonable for him to expect that “no one would find the note and enter that information into the computer in a deliberate attempt to open, read and print his password-protected documents.” Parnes, 80 A.D.3d at 951. His leaving the information on the desk available to all was, in the court's view, mere carelessness that would not defeat his reasonable expectation of confidentiality.

What the Decision Means

Parnes certainly suggests that the client need not undertake Herculean efforts to preclude access to the client's e-mail account in order to ensure that the client's e-mail communications are deemed confidential. Thus, steps like adopting a password that would be difficult to guess, changing the password frequently, or preventing the use of special hacking software that can decipher the password are not necessary to establish the requisite confidentiality. Rather, all that is necessary is for the client to set up an e-mail account that is password protected, avoid the express disclosure of the password to others unless necessary for transmission or receipt of the e-mail, log off when finished, and not allow others to use the account.

Notwithstanding Parnes, clients should also be advised to make sure that their passwords are kept in a secure location, and not left in a location where they are readily accessible, with or without any snooping, as other courts may not be as forgiving as the Parnes court.

Willis v. Willis

The 2nd Department's decision in Willis v. Willis , 79 AD3d 1029 (2d Dept. 2010), confirms this advice. In Willis, the plaintiff commenced a defamation action against her former husband and his current wife based upon their conduct in sending an e-mail addressed to the plaintiff, which allegedly contained defamatory statements. After commencing the action, the plaintiff used the same e-mail account to communicate with her attorneys. The defendants moved to compel the plaintiff to produce those e-mails, contending they were not privileged communications.

The court declared that the e-mail communications were not confidential. The basis for this conclusion was that the plaintiff's children not only knew the password to her e-mail account, but also regularly used that account. In these circumstances there could be no “reasonable expectation of confidentiality.” Willis, 79 AD3d 1030. While the third persons involved were plaintiff's own children, this fact did not require a contrary conclusion as they were also the children of her husband/adversary, and they had unrestricted access to the plaintiff's attorney-client communications. While the court also noted that the children were not requested by the plaintiff to keep the e-mails confidential, its opinion suggests that even if such a request were made, the requisite confidentiality would still be absent.

Michael J. Hutter is a professor of law at Albany Law School, where he teaches Evidence and New York Practice, and is special counsel to Powers & Santola. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.