Email and the Attorney-Client Privilege

 The California Evidence Code Section 954 says the client has the privilege to refuse todisclose “a confidential communication” with the client’s lawyer. There are a few exceptions tothe attorney-client privilege in Evidence Code Sections 950-968, which generally do not apply inFamily Law. 

The attorney-client privilege is necessary as it allows the client to have an open andhonest communication with the lawyer when seeking legal advice. This privilege existed longbefore the invention of email and more recently Evidence Code Section 217 extends the attorney-client privilege to confidential email communications between clients and attorneys. However,the client needs to be aware of the following concerns in deciding whether or not to communicatewith the lawyer by email:

1. No one can guarantee the security of emailed communications and mostlawyers do not employ encryption methods.

2. You should not send on email to your lawyer from an address where you donot want a reply to be sent. If the lawyer receives an email communication from you, he or shenormally assumes it is safe to send a reply message back to the same address.

3. You should not rely on emails for urgent matters. Rather, you should use thetelephone to transmit urgent messages.

4. You should not email particularly sensitive or potentially embarrassingcommunications. There is a risk, however slight, that your email could be intercepted. There isalso a risk that your email could be misdirected, inadvertently disseminated and read by others. 

5. If you are going to use email make sure you promptly inform your attorney ofany change in your email address.

Email is increasingly popular with clients and its use is continuing to grow. However, clients should keep the foregoing concerns in mind so as to protect their attorney-client privilege. Since each case is different it is a good idea to discuss the use of email with your attorney at the time the attorney is hired. 

Along with his 30-year passion for the law, Family Law Specialist Richard E. Bawden is an avid baseball fan, loves history, and particularly enjoys sampling any kind of donut that is available.