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No lawyer — even the most ethical — would want a prosecutor to see or hear his client communications. Indeed, the most sacred ethic is that of confidentiality. Surprisingly though, even in post-Enron America, most lawyers believe that because the attorney-client privilege is likewise so sacred, it will triumph, rendering their client communications impervious to (and beyond the reach of) sophisticated adversaries who seek them in discovery. They somehow feel that their bilateral client contacts, even when made through e-mail, surely will not be disseminated. After all, they say, the devastating e-mails used by some businessmen, the kind of rapid-fire thoughts communicated electronically without the self-editing process used when committing something to writing by letter or fax, are not privileged in the first place. Say these lawyers: “It can’t happen to me, especially in a lawyer-client conversation. And I don’t write that stupid stuff, anyway.” These lawyers apparently gain comfort from ABA Formal Opinion 90-413, which, though somewhat off point, affirmatively states that lawyers may transmit communications, as well as client-confidential information, even by unencrypted e-mail over the Internet without violating their ethical duty to maintain client confidentiality. Lawyers who reach the conclusion that their communications remain protected may not have considered a number of other factors:

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