When I have an initial interview with a client, one of the common questions that comes up is, “how should I get in touch with you?” Because I am at times up and working early in the morning, or out of the office in court during the day and catching up at night, a common response is, “e-mail.” As we continue to move into the age of technology; when our President has a Blackberry, e-mail is increasingly supplementing phone calls as a way for me to communicate with clients.
Yet there are a couple of important things that have to be considered when communicating electronically with a lawyer. I had previously discussed some of these issues in a previous blog. For instance, it is important to remember that AOL, and other non-web based e-mail servers may place copies of your sent and received e-mails directly onto your hard drive. Therefore, any person in the household who has access to your computer also may also have access to that you may have believed were confidential communications to your attorney. Thus, I always suggest that client’s use a web-based e-mail such as yahoo, gmail or hotmail.
Another issue that comes up is the fact that many clients utilize their work computers and e-mail address to communicate with their legal counsel. A unreported non-matrimonial case was recently decided, Stengart v. Loving Care Agency, in which an employee had used her company issued laptop to e-mail her lawyer. Even though she utilized her web-based e-mail address, a temporary file was still stored on the hard drive. Thus, the court found that the employee had waived the attorney client privilege when she used the company’s hardware. Important in that case was the fact that the employee handbook specifically provided that e-mail messages were part of the company’s business records. Also in this particular case, the employee had used the company lap top to communicate with her lawyer about the terms of her resignation from the company.
Notwithstanding the particular facts of this case, it is surely the tip of the iceberg floating our way. This is an area of the law in which the technology is moving faster than we can respond. It is imperative that you know what files will be stored on the hard drive of the computer that you are using when conveying information to your lawyer. The lesson to be learned here is that when you have critical confidential information to get to your lawyer, pick up the phone and give me a call.