How to Write a Rock-Solid Attorney-Client Privilege Email: A Comprehensive Guide

In the legal world, communication is paramount. And when that communication involves an attorney and their client, the concept of attorney-client privilege becomes critically important. This privilege ensures that confidential communications between a lawyer and their client remain protected, shielding them from disclosure in legal proceedings. However, this protection isn’t automatic. It requires careful adherence to specific guidelines, especially when it comes to written communication like email. This article provides a comprehensive guide to crafting emails that maintain attorney-client privilege, offering detailed steps and instructions.

Understanding Attorney-Client Privilege

Before diving into the specifics of email composition, it’s crucial to understand the foundational principles of attorney-client privilege. This privilege is a legal doctrine that protects confidential communications between an attorney and their client made in the course of the attorney-client relationship. This protection aims to encourage open and honest communication, allowing clients to freely share all relevant facts with their lawyers without fear of disclosure. This, in turn, allows lawyers to provide the best possible legal advice and representation.

Key elements of the privilege include:

• Confidentiality: The communication must be intended to be confidential and not shared with third parties outside of the attorney-client relationship.
• Attorney-Client Relationship: There must be an existing or prospective relationship between an attorney and client.
• Legal Advice: The communication must be for the purpose of seeking or providing legal advice.

It’s important to note that the privilege doesn’t cover all communications. For instance, communications about a future crime are not protected, nor are communications that are not intended to be confidential (like a casual conversation in a public place). Additionally, the privilege belongs to the client, meaning the client, not the lawyer, is the only one who can waive it.

Why Email Can Be Risky

While email is a convenient and efficient mode of communication, it presents certain risks to attorney-client privilege. Unlike face-to-face conversations or phone calls, emails create a written record that can potentially be discovered and subpoenaed in legal proceedings. Here’s why email communication requires careful attention:

• Metadata: Emails contain metadata (e.g., senders, recipients, dates, times) that can reveal information about the communication, even if the body of the email is privileged.
• Accidental Disclosure: It’s easy to accidentally send an email to the wrong recipient or to unintentionally include individuals who are not covered by the privilege in a “cc” or “bcc” field.
• Email Security: Unencrypted email is vulnerable to interception by hackers or other malicious actors.
• Forwarding/Replying: Emails can easily be forwarded or replied to, potentially extending the communication to individuals not subject to the privilege.
• Storage: Emails are often stored on servers and devices that may not have adequate security protocols.

Crafting a Privileged Email: A Step-by-Step Guide

To mitigate the risks associated with email communication, you need to approach it with meticulous care. Here’s a step-by-step guide to creating emails that are more likely to be protected by attorney-client privilege:

Step 1: Identify the Communication’s Purpose

Before you start writing, clearly identify the purpose of your email. Is it to seek legal advice, provide legal counsel, or discuss matters directly related to your legal representation? This is important because the purpose must be linked to the provision of legal advice for the privilege to apply. If the email concerns matters outside the scope of the legal representation, it might not be protected. Avoid using email for casual conversations or matters unrelated to legal advice. For instance, scheduling an appointment can be done through other means.

Step 2: Use a Clear and Specific Subject Line

The subject line should be concise and clearly indicate that the email contains privileged information. Examples include:

• “Attorney-Client Privileged Communication”
• “Confidential Attorney-Client Communication”
• “Privileged Legal Advice Request”
• “Confidential Legal Matter Regarding [Case Name/Matter]”

While using these phrases won’t guarantee privilege, it serves as a flag indicating the confidential nature of the content and your intent to maintain privilege. Avoid vague or ambiguous subject lines.

Step 3: Address the Email Correctly

Ensure that you’re sending the email only to individuals covered by the attorney-client privilege. The “To” field should contain only your attorney’s email address, or the client’s email address when the client is initiating the communication with the attorney. Avoid including other parties who aren’t part of the privilege in the “To” field. Be very careful using the “cc” and “bcc” fields. The more individuals who receive the email, the greater the chance of inadvertent disclosure.

Step 4: Include a Confidentiality Header and Footer

It’s a good practice to include a confidentiality notice at the beginning and end of your email. This further reinforces the privileged nature of the communication. Examples of such headers/footers include:

Header:

CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGED COMMUNICATION
This email and any attachments are intended solely for the use of the individual or entity to whom it is addressed and may contain confidential and privileged information. If you are not the intended recipient, you are hereby notified that any dissemination, copying, or disclosure of this communication is strictly prohibited. If you have received this communication in error, please notify the sender immediately and delete the original message.

Footer:

This email and any attachments are subject to attorney-client privilege and may be protected from disclosure under applicable law. Any distribution or disclosure of this communication to any third party without express consent is strictly prohibited.
[Your Name/Company Name]

While these notices don’t guarantee privilege on their own, they demonstrate your intent to keep the communication confidential.

Step 5: Craft Clear and Concise Language

Be clear and direct in your writing. Avoid ambiguous language or jargon that could be misinterpreted. Stay focused on the specific legal matter at hand. Avoid using casual language or emoticons, as these can undermine the professional nature of the communication. Ensure the context of your request or provided advice is clear to the recipient.

Step 6: Avoid Sensitive Information in Attachments

Sensitive documents should be attached to your emails with caution. It’s preferable to use secure document-sharing platforms for exchanging sensitive material. If you must attach sensitive documents, ensure that you are sending them to the correct recipients and that these documents are also clearly marked as confidential and privileged.

Step 7: Use Encryption and Security Measures

Whenever possible, use encrypted email services to protect your communications from interception. Many legal professionals use secure portals or platforms to exchange confidential information. Consider encrypting your devices to protect emails stored locally. Implement strong password policies and multi-factor authentication on email accounts.

Step 8: Monitor and Update Your Practices

Regularly review your email security practices. Stay up-to-date on best practices for maintaining attorney-client privilege in digital communications. Educate yourself and all members of your team or firm about the importance of maintaining confidentiality.

Step 9: When in Doubt, Seek Guidance

If you’re unsure about whether a particular email qualifies for attorney-client privilege, consult with your attorney or legal counsel. It’s always better to err on the side of caution and take extra steps to protect confidential communications.

Specific Examples of Privileged Email Content

Here are a few examples of email content that, when properly formatted as outlined above, may be protected by attorney-client privilege:

Example 1: Client Seeking Legal Advice

Subject: Attorney-Client Privileged Communication - Legal Advice Request Regarding Contract Dispute

CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGED COMMUNICATION

Dear [Attorney's Name],

I am writing to you today to seek legal advice regarding a potential contract dispute with [Opposing Party]. The specific issues are as follows:

[Detailed description of the contract, the dispute and the related documents]

I would appreciate it if you could review the attached contract documents and advise me on the following:

1.  What are my legal rights and obligations under the contract?
2.  What are the potential legal risks and liabilities involved?
3.  What are my options for resolving this dispute?

Thank you for your time and attention to this matter. I look forward to hearing from you soon.

Sincerely,
[Client's Name]
[Client's Company Name]

This email and any attachments are subject to attorney-client privilege and may be protected from disclosure under applicable law. Any distribution or disclosure of this communication to any third party without express consent is strictly prohibited.

Example 2: Attorney Providing Legal Advice

Subject: Confidential Attorney-Client Communication - Legal Advice Regarding Ongoing Litigation

CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGED COMMUNICATION

Dear [Client's Name],

Following our recent discussion, I am providing you with a written summary of our legal strategy concerning the ongoing litigation with [Opposing Party].

[Summary of Legal Strategy]

My analysis suggests that we should proceed with [specific action] based on the following:

[Supporting legal arguments]


Please let me know if you have any questions about this advice. 

Sincerely,
[Attorney's Name]
[Law Firm Name]

This email and any attachments are subject to attorney-client privilege and may be protected from disclosure under applicable law. Any distribution or disclosure of this communication to any third party without express consent is strictly prohibited.

Common Pitfalls to Avoid

Despite diligent efforts, it’s easy to make mistakes that can jeopardize attorney-client privilege. Here are some common pitfalls to avoid:

• Waiver: Remember that the privilege belongs to the client, and they can waive it by disclosing privileged communication to a third party. Avoid inadvertently disclosing privileged information to anyone outside the attorney-client relationship.
• Loose Language: Using casual language, making jokes, or including irrelevant comments in your emails can undermine the professional and confidential nature of the communication, making it more vulnerable.
• Forgetting Bcc: Failing to use “bcc” when sending an email to multiple clients or attorneys can inadvertently reveal email addresses and create a disclosure risk. Only send to a group of intended recipients when their relationship to the client makes it necessary.
• Using Work Emails on Personal Devices: Avoid accessing sensitive work emails on personal devices, as these may not have the necessary security protocols.
• Using Public Wi-Fi: Do not access client information or send emails via public Wi-Fi.
• Unencrypted Emails: Avoid sending emails that contain sensitive information unless it is encrypted.
• Assumptions: Do not assume that a communication is privileged; always treat it as confidential and apply necessary security measures.

Conclusion

Maintaining attorney-client privilege in email communication requires diligence and a consistent approach. By following the guidelines outlined in this article, you can significantly reduce the risk of inadvertent disclosure and protect the confidential communications between you and your attorney. Remember that prevention is key, and it is your responsibility to use these best practices when communicating about legal matters. Always be aware of the sensitive nature of the information being shared and make sure that you are maintaining the confidentiality necessary to ensure your privilege is preserved. When in doubt, seek guidance from your legal counsel to ensure that you are taking the appropriate precautions. By implementing these practices consistently, you can effectively safeguard your privileged communications and maintain the integrity of the attorney-client relationship.