When attorney-client privilege law first developed, carbon paper was considered cutting-edge technology. Today, technological advances allow lawyers to communicate with their clients in ways that would make Buck Rogers envious.
All that new technology, however, poses some difficult questions about the attorney-client privilege. With everyone e-mailing, texting and talking on mobile devices, in-house counsel may hope that these communications are confidential and privileged in case of litigation. But are they? The answer from the courts to date: It depends.
For the attorney-client privilege to exist, four elements must be present. There must be (1) a communication (2) made between privileged persons, such as an attorney and client, (3) in confidence (4) for the purpose of seeking, obtaining, or providing legal advice or assistance. The privilege, however, can be waived when there is no reasonable expectation that the communication will remain confidential. A waiver of privilege grants litigation opponents access to information they otherwise would not be entitled to during the course of discovery.
Today’s fast-changing technology increases the risk of potential waiver. Using mobile phones and PDAs, lawyers and clients can share information instantaneously from virtually anywhere in the world. Memos, letters, charts can be transmitted or stored. Conversations can take place by phone, through e-mail or with instant messaging. As the uses of these devices continues to expand, the courts find themselves looking to rulings on older technologies as they consider the application of the attorney-client privilege law to today’s rapidly evolving methods of communication.
The good news is that state and federal courts have already held that there is a reasonable expectation of privacy for communication using landline telephones and faxes, which are not easily intercepted inadvertently. Congress and several states have also codified the privacy of e-mails, now widely recognized by the courts. The Electronic Communications Privacy Act of 1986 (“ECPA”) criminalized the interception of e-mail transmissions and provides that interception does not result in the loss of the attorney-client privilege. States including New York and California have statutes expressly providing that the interception of e-mail does not vitiate privilege.
Further, cases from federal and state courts around the country—such as Stafford Trading, Inc. v. Lovely (2007), In re Lernout & Hauspie Sec. Litig. (2004), and Bovis Lend Lease, LMB, Inc. v. Seasons Contracting Corp. (2002)—reinforce the protection of privacy and privilege for e-mail. Rulings in these cases have held that e-mailed communication between counsel and client remains privileged.
When it comes to other kinds of technology, however, the expectation of privacy is still developing. The rules governing mobile or cellular telephones are a case in point. Before the introduction of cellular phones, courts held that attorney-client communications over mobile radio phones were not privileged. As a Louisiana federal district court in Edwards v. Bardwell wrote, “there is no reasonable expectation of privacy in a communication which is broadcast by radio in all directions to be overheard by countless people who have purchased and daily use receiving devices.” Similarly, the federal appeals court in U.S. v. Mathis held that conversations over cordless phones were not deemed to be confidential, so a lawyer would be tempting fate by talking to his client over a cordless phone.