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Don’t let email mistakes nullify your attorney-client privilege

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in Office software,Office Technology

Communication with your attorney is protected by law. But, if you or someone on your staff misdirects an e-mail to a third party, that action wipes out your attorney-client privilege.

A careless "forward" or "reply all" by one of your employees could spell legal disaster. And such unanticipated problems are occurring more frequently, business lawyers say.

To better safeguard the information you send to your attorney, follow these four steps:

1. Label "confidential" above the message. Put a header—not a note at the bottom—on all privileged and confidential e-mail. It should specify that the message is "privileged, confidential, protected communication, intended for the recipient only and should be deleted if received by anyone other than the addressee."

Although such a note may not ensure confidentiality, it at least gives notice that you intend to protect the contents. That can be important to establish if your attorney-client privilege is called into question in court.

2. Encrypt key messages. Always use encryption technology for sensitive communication.

3. Train and educate. E-mail is so user-friendly that it often leads to overly candid statements and casual forwarding. You and your employees need to recognize the much greater e-mail "broadcast potential," as compared with a letter or a fax.

Instruct staff on proper precautions. Example: flagging messages that should not be shared. Remind employees that anything they write via e-mail could someday appear on a projection screen in court.

4. Consult your lawyer. If your attorney doesn't bring up the issue, you should. Decide on a preferred communication method, whether it be e-mail, phone or fax. For the most confidential situations, meet in person with your lawyer.

Note: Employees who use your email system to communicate with their attorneys don’t enjoy attorney/client privilege, according to several court rulings.

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