Waiving the Attorney Client Privilege by Using Third Party File Transfer Providers - Part 1
An interesting question was raised by a Government law department seeking to use LeapFILE to transfer files: does a party lose its right to claim attorney client privilege over a communication otherwise privileged by using a service like LeapFILE to transmit that communication? The rationale for breaking the privilege is that the communication has been shared with a third party (i.e. outside of attorney and client).
There are a number of exceptions to waiver of the privilege. One is codified by California Evidence Code section 952, which provides that the privilege covers information transmitted to persons to whom disclosure is reasonably necessary for "the accomplishment of the purpose for which the lawyer is consulted."
Most legal decisions and opinions covering this issue initially involved the use of unencrypted email, and in every case I reviewed, the court found the privilege was not waived because of that mode of transmission. See In City of Reno v. Reno Police Protective Ass’n, 59 P.3d 1212 (Nev. 2002), modified, 2003 Nev. LEXIS 25 (Nev. May 14, 2003); U.S. v. Councilman, 2005 WL 1907528 (1st Cir. Aug. 11, 2005).
Most courts still refer to the Formal Opinion issued the American Bar Association way back in 1999, when the legal system first grappled with issues generated by the Internet and electronic discovery. ABA Formal Opinion 99-413 (1999), held that:"A lawyer may transmit information relating to the representation of a client by unencrypted e-mail sent over the Internet without violating the Model Rules of Professional Conduct (1998) because the mode of transmission affords a reasonable expectation of privacy from a technological and legal standpoint. The same privacy accorded U.S. and commercial mail, land-line telephonic transmissions, and facsimiles applies to Internet e-mail."
The ABA was wise to compare email to other forms of communication like fax and telephone, and therefore should not be accorded lesser claim to privilege. However, the legal rationale underlying this opinion -- the"reasonable expectation of privacy" doctrine -- is worth noting here. While it's arguable that an ordinary citizen back in 1999 would not know that email is unencrypted and therefore could not have known that email is like reading a post card, this can and may not be the case today or in the near future.
Another component to this analysis is how easy it is for parties to secure and protect the communication. It used to be that the available encryption solutions were too cumbersome and complex for ordinary business users to implement for routine communications. That is no longer the case. LeapFILE provides solutions that make encryption easy, and automatic and seamlessly integrated with popular email clients like Outlook, Thunderbird and Groupwise. It will be harder and harder for parties to claim that they couldn't have known that regular email was insecure or unreasonable for them to secure the communication.
The day may come sooner than later when courts mandate that attorney client privilege is not waived and therefore preserved only when transmitted by encrypted means.
