If you are like most California residents, you probably believe that anything you say to your attorney is privileged, meaning that he or she cannot divulge it to anyone else without your consent; that is, without your agreement to waive the attorney-client privilege. You also probably believe that if your attorney does disclose any of your information to someone else without your permission, you can sue him or her for legal malpractice.
For the most part, your beliefs are valid. However, have you considered whether information you convey to your attorney via email falls within the attorney-client privilege? The short answer is “yes, but…” – and the but is a big one.
As FindLaw explains, no court has yet specifically answered this question, but most legal scholars are of the opinion that email communications to your attorney are indeed privileged. Just because they are privileged, however, does not mean that they are safe from prying eyes. Nor does it mean that you can sue your attorney for malpractice if something you tell him or her in an email winds up in the hands of someone else.
Dangers of email transmissions
Sending information to your attorney by email is inherently dangerous, no matter what precautions he or she takes to have and maintain secure email connections. Not only do most of your emails wend their way through one or more foreign internet systems prior to reaching your attorney’s inbox, they also are vulnerable to hackers. Such is the technological age in which we live.
While your attorney cannot be compelled by a court or by law enforcement officials to divulge the privileged information you give him or her, both of you are at risk for that privileged information being intercepted by one or more unauthorized parties when you communicate via email. Nevertheless, the American Bar Association Standing Committee on Ethics and Professional Responsibility has issued its opinion that you have a reasonable expectation of privacy when you transmit information via email, and therefore it falls within the attorney-client privilege even though it is vulnerable to hacking and other forms of interception.
Bottom line, any confidential information and/or documents you choose to transmit to your attorney via email are privileged, but vulnerable. You would do well to choose a more private method of communication. This information is provided for educational purposes and should not be interpreted as legal advice.