Inadvertent emails and confidential information

Technology has made the practice of law more efficient in innumerable ways, from allowing attorneys to quickly review documents to filing documents online instantly without stepping foot in the courthouse. However, the benefits of technology are not without their risks -- particularly when it comes to emails.

Ironically, it is because technology makes sending email so easy that sending email can create risk. Indeed, most people have at some point either received an email that they were not supposed to receive or accidentally sent an email to an unintended recipient, and attorneys are no exception. Moreover, one email sent by an attorney may take on a life of its own when forwarded by the client to other individuals and end up being used for purposes for which it was never intended. Both of these types of inadvertent emails create risks that can be managed.

Accidental Emails

While writing a letter and putting it in a mailbox may seem antiquated, at least there was typically little risk that the attorney would accidentally send the letter to the wrong recipient. Now, thanks to auto-populated "To" fields, an attorney might send an email containing confidential information to someone with a similar name as the intended recipient or, in a worst-case scenario, intend to forward an email to a client but instead respond to opposing counsel. Other times, it is that troublesome "reply all" option.

The primary concern from these type of inadvertent emails is the disclosure of sensitive confidential or privileged information to someone other than the client. To make matters worse, it can be difficult to mitigate the harm of an accidental email, as it can be next to impossible for the third-party recipient to "unlearn" the confidential information.

Forwarded Emails

The risks of email do not stem solely from the attorney accidentally sending an email to the wrong recipient, as sometimes emails are received by unintended third parties as a result of the client's own prerogative. Once an email is sent by the attorney, there is no telling who else will ultimately receive the email. With a few clicks, a client can share the attorney's work product with the world.

This risk can be heightened for attorneys handling real estate or commercial transactions as clients might believe, for example, that a title opinion or a corporate authority opinion that is good for one purpose is good for all purposes. Accordingly, the client might forward those opinions to lenders, investors, or potential purchasers, despite the fact that the attorney never intended to write an opinion for reliance by those third-parties or for use outside of the unique context in which it was prepared.

When this occurs, the risk is that the third-parties might rely upon the opinion provided by the attorney to their detriment. Attorneys might find themselves on the receiving end of a claim from the third-parties or even from the client, who alleges that the advice was harmful. Apart from this risk, there is also the possibility that a court will find that the client waived the attorney-client privilege by forwarding the email to third-parties.

Potential Solutions

There are things that an attorney can do, however, to reduce the risks of liability resulting from inadvertent emails. Perhaps the easiest way to mitigate the risk of inadvertent emails is to include a footer attached to all outgoing emails. The footer can contain, among other things, an attorney-client privilege notice and can 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.

The concern about using such a footer on every communication, even clearly non-privileged communications, is that the designation will lose its significance in evaluating whether an attorney or client intended to preserve the privileged nature of a particular email or communication. Thus, while sometimes helpful, courts may find that the label attached by an attorney is given little weight in deciding whether a communication is entitled to protection under either the attorney-client privilege or the work product doctrine.

Nonetheless, while the opinions of the American Bar Association, the courts, and the many state bar associations have varied on the effectiveness of such a footer, it does appear that there is some increased protection in the liability context when the footer is used to protect against the inadvertent disclosure of information.

Moreover, courts may treat information inadvertently disclosed through email in the same manner as documents inadvertently disclosed in discovery. When an attorney realizes that an email was inadvertently disclosed and advises the recipient, the burden may shift to the recipient to take corrective action. Corrective action could include isolating, returning, and/or destroying the inadvertently produced privileged materials.

Indeed, California courts have gone so far as to disqualify law firms in receipt of inadvertently disclosed emails where they fail to return the email but instead attempt to use it offensively in litigation. See McDermott Will & Emery LLP v. Superior Court, 10 Cal. App. 5th 1083 (Cal. Ct. App. 2017), review denied (June 14, 2017).

Thus, while it may be impossible to unring 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.

Accordingly, although inadvertent emails may be an unfortunate downside of new technology, there are ways to limit the risks when the inevitable mistakes occur.