http://ow.ly/6Y1GV
An article by Lauren Fajoni Bartlett published on the DRI Today website.
This article discusses the ABA Rules, and what rules apply to ensure that an electronic communication is considered to be protected by attorney-client privilege.
The author states, "On August 4, 2011, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 11-459, which discusses the duty to protect the confidentiality of e-mail communications with clients. The advisory opinion pertains to ABA Model Rule 1.6 and the comments thereto, which require a lawyer to maintain confidential communications and act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons. Thus, it is incumbent upon the practitioner to be aware of scenarios where modern communication devices may result in an inadvertent disclosure, thereby compromising confidential attorney-client communications."
The article discusses several recent cases, and uses them as examples to indicate what circumstances constitute a waiver of privilege. The article also discusses the Fourth Amendment, and when a reasonable expectation of privacy can be seen to exist.
The article sums up with the following advice, "When the client is a corporation, the scenario presented herein more than likely will not become an issue; however, when representing an individual—especially in the context of corporate litigation where the employee and employer may become adverse—it is incumbent upon the attorney to advise the client that e-mail communications sent from a work computer can result in a waiver of the attorney-client privilege."
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