Paralegals and attorneys beware! According to a recent article in The Recorder, sending that email to the wrong person can be a possible legal malpractice claim in the future.
“Emails sent in certain practices, such as commercial or residential real estate and other commercial transactions, are at a higher risk of being forwarded to third parties without the attorney’s consent. Clients in these areas believe a title opinion or a corporate authority opinion that is good for one purpose is good for all purposes, but forwarding emails and opinions creates risks.
For the attorney, there is the risk that opinions, which were transmitted for a single purpose in a unique context, may be transmitted for use in connection with unintended purposes or unrelated contexts. For the client, there is the risk of the waiver of the attorney-client privilege. And for the recipient, there is the risk of detrimental reliance on an opinion that does not apply to facts and circumstances for which the email was forwarded.”
There are things the legal staff and attorney can do to protect itself in the event this occurs, such as adding content to the email footer that can be automatically attached by the system to every outgoing email. The footer can be used, among other things, to include an attorney-client privilege notice or to address the risks of forwarded emails by putting recipients on notice of the boundaries for acceptable and permissible use of the content of the email.
There are however, no magic words approved by the Court for this purpose. Also, “Courts have generally held that such a label attached by an attorney means little in deciding whether a communication is entitled to protection under either the attorney-client privilege or the work product doctrine.”
The opinions of the American Bar Association, the Courts and the many state bar associations have varied on the effectiveness of such a footer. However, it appears there is some increased protection in the liability context if attorneys adopt language in their emails that parallels the inadvertent disclosure language applicable in the discovery context.
In California, generally, where it is evident the client had not made the disclosure, the lawyer did not intend to disclose confidential information and the inadvertently disclosed document was clearly marked as confidential, no waiver will be found. See State Compensation Insurance Fund v. WPS, 70 Cal.App.4th 644 (1999).
In California, once an attorney realizes privileged information has been received, the attorney must immediately notify the sender and attempt to resolve the issue. See Rico v. Mitsubishi Motors, 42 Cal.4th 807 (2007); State Comp. Ins. Fund v. WPS, 70 Cal.App.4th 644 (1999).
“While never sufficient to “un-ring the bell” once the privileged email has been read, inadvertent disclosure instructions can increase an attorney’s ability to potentially obtain some relief after discovery of the problem.”
As stated in this article, “as applied to a footer, the language addressing both the risk of forwarded emails or inadvertent emails might contain the following:
NOTICE: This email and all attachments are CONFIDENTIAL and intended SOLELY for the recipients as identified in the “To,” “Cc” and “Bcc” lines of this email. If you are not an intended recipient, your receipt of this email and its attachments is the result of an inadvertent disclosure or unauthorized transmittal. Sender reserves and asserts all rights to confidentiality, including all privileges that may apply. Pursuant to those rights and privileges, immediately DELETE and DESTROY all copies of the email and its attachments, in whatever form, and immediately NOTIFY the sender of your receipt of this email. DO NOT review, copy, forward, or rely on the email and its attachments in any way. NOTICE: NO DUTIES ARE ASSUMED, INTENDED, OR CREATED BY THIS COMMUNICATION. If you have not executed a fee contract or an engagement letter, this firm does NOT represent you as your attorney. You are encouraged to retain counsel of your choice if you desire to do so. All rights of the sender for violations of the confidentiality and privileges applicable to this email and any attachments are expressly reserved.”
The inclusion of the above description serves three purposes.
1) it highlights the communications as protected so an unintended recipient cannot claim he was unaware of the privilege issue until after the email was read; 2) it reinforces the intent to preserve and protect the privileged nature of the communication and makes clear no waiver was intended; and 3),perhaps the most significant, it distinguishes the email from other emails that may not be privileged.
Of course, emails still get read, even where they are unintentionally sent. These two steps—changing the footer and the subject line—at least provide some additional protections from those situations.
The above information can also be found in the book, California Legal Malpractice Law. I have nothing to do with the writing, editing or distribution of this book.
I think I will be editing my footer immediately. Hopefully, knock on wood, I will never have to worry about this but I would rather be safe than sorry.