At my company, when we’re dealing with E&O situations, we’ve been instructed to copy one of our company attorneys on all email correspondence, and to write something like “PRIVILEGED AND CONFIDENTIAL
ATTORNEY-CLIENT COMMUNICATION” on all emails relating to the situation. Does that really work?
I would think that something that is not truly attorney-client communication, and is really a bunch of actuaries and consultants discussing things with each other would not become attorney-client communication simply because a lawyer is copied on the email. And further that the status of such communication wouldn’t change based on us declaring that it’s protected information.
But the people who create these policies are not fools either, and they are primarily lawyers themselves.
OTOH, possibly it’s a stretch but they figured why not just give it a shot.
When dealing with errors and omissions situations this is likely to work in my opinion.
A number of years back I ran into an insurance company that had most of its internal memos on how to handle claims routed through the attorneys in a similar fashion. Claims handling is not protected like E & O. The judge upheld the claim of privilege despite the fact that the documents had been produced in another case.
I think that the answer is ultimately going to be fact specific. Are the emails seeking legal advice? Are they related to an ongoing case. How many people are being copied? What role is the lawyer playing?
Just copying an in house counsel on a matter does not create the privilege. The courts have held that the primary purpose of the communication must a request for legal advice. In other words, you can’t just shield things from discovery by sending everything through the legal department. *
I should note that a lot of attorney client privilege law is going to be jurisdiction specific and sometimes even judge specific. It is a surprisingly poorly understood area in that often even experienced attorneys aren’t too familiar with it beyond the very obvious and superficial.
Attorney-client privilege prohibits someone from forcing an attorney to disclose information revealed confidentially in the context of an attorney-client relationship. Just because an attorney has a copy of something doesn’t mean that it is privileged, especially to the extent that it isn’t really confidential.
Don’t give the facts here. You don’t want the whole thing to fall apart because of a posting on the Straight Dope Message Board.
The short answer is that copying your lawyer may or may not be successful in attaching attorney-client privilege, but not copying him or her is guaranteed to mean that there will be no attorney-client privilege.
You really don’t want to give specifics here. The last thing you want to do is make the whole thing discoverable and identify yourself. As a practical manner, follow the company’s policy. Whether it gets turned over or not, won’t be your call but rather will be decided by the litigation attorneys.
This link (WARNING PDF!) gives a nice overview of recent case law and what is privileged and what isn’t in this context.
When I wrote “the facts” I didn’t mean the specific details of the E&O situations we are dealing with. I meant the answers to your questions, as subsequently discussed in that post (#4).
On a related note, how does the determination of whether it’s protected play out? Does the other side get to look at all the info and then fight in front of a judge over whether it’s protected in terms of using it in court? Or do they give the judge a gazillion emails to read and ask him (or his employee) to determine what’s protected?
That is the realm of privilege logs. One side makes a ginormous Excel spreadsheet on which is listed thousands of vaguely referenced communications with accompanying claims of privilege. The other side challenges it, and the dance of discovery goes on and on …
Are all of the other people who are receiving these emails potential parties in the possible lawsuits? Because even if the communications were confidential under attorney-client privilege, that confidentiality would be breached if the company was willingly sharing the same information with other people.
I realize in this particular case, the communication with the attorney is not the primary purpose of these emails. But I think the argument will be that if the company was willing to pass around this information to so many people who weren’t involved in the case they can’t then claim confidentiality.
All these people are “involved” in the case, whether they are or are not potential parties.
When an E&O situation is discovered, you need for qualified people to assess the situation and determine the cause and scope of the error and the like. The people who can do this are not lawyers, but rather professionals in the field in which the E&O arose.
The link I gave earlier is broken, but here is a test for whether the attorney client privilege holds.
As you can tell, it really isn’t as simple as slapping ATTORNEY CLIENT PRIVILEGE on an email. As **Ascenray **stated, you have to produce privilege logs and then the parties if they so choose, can fight in court over whether the documents are privileged.
If you an I have an email exchange over something, and you aren’t seeking legal advice, then it really isn’t privileged.
I suspect the judge will read the disputed mails and see if they fit the definition. It will just add quite a few billable hours to the end result, so I would expect a lawyer to tell you to try it.
I suppose the question is - if the email says “Hey Joe (copy lawyer Brian) here’s the spreadsheet of costs” and the costs are discoverable as files stored on the client computer, would the judge simply say “this is not privileged because it has nothing to do with anything private.” The only extra piece of information the “privileged” email would reveal is that Joe saw the spreadsheet too.
Hmmm… is the server email log (mail to-from-cc-subject-date and time) privileged, or only the body of the communications? Is logging to a server file considered sharing with an outside party?
Of course, if the email is also sent to an outside party (someone for whom the lawyer is not THEIR lawyer too, ie. not an employee of the same company) then it is to a “stranger” and not covered.
True, but don’t forget that the privilege can be waived with written communications. For example if you send me an email seeking legal advice and I respond, then you forward it to someone else, then the court may find that attorney client privilege has been waived. Depending on the circumstances, work produce may still protect the emails but that is a different argument altogether.
I think the OP is saying this is internal communication between employees of the company, and the lawyer is hired by the company. Therefore, anything said between two people and “their lawyer” would maybe be considered privileged.