Two areas of risk in electronic communications include the "inadvertent waiver of attorney-client privilege" and the issue of document retention, according to authors Brenda R. Sharton and Gregory J. Lyons in their article, "The Risks of E-mail Communication: A Guide to Protecting Privileged Electronic Communication." The article ran in the September/October 2007 issue of the ABA Section of Business Law’s Business Law Today.
In order to protect the privilege, Sharton and Lyons suggest that in-house counsel do the following:
"Be aware of when you are giving legal versus business advice in your e-mail."
Consider using a lead-in phrase to the effect of, "You have asked for my legal advice on…" to delineate business from legal advice.
Educate clients about the risks of informality in email, as well as the "paper" trail that email represents even when the "delete" button is pushed.
"Selectively use ‘Privileged & Confidential’ notations on e-mail communications."
The entire article, "The Risks of E-mail Communication…" may be read here.
