Email is an innovative tool that has changed business by creating unprecedented productivity and efficiency. As with most innovations, however, email also has a downside. There is no shortage of examples of a poorly written email creating embarrassment or liability for companies. Part of the problem stems from the fact that, while email is technically a form of correspondence, most users treat email with the informality of a conversation. Users routinely write things in an email that they would never write on official company letterhead. This is ironic because the record created by mailing a dozen letters is far less permanent than the record created by sending only one email.
While attorneys regularly counsel their clients to approach email with caution, attorneys often ignore that advice in their own email correspondence. Frequently, this is because attorneys operate under the assumption that their emails are privileged and will never be subject to disclosure. As discussed below, however, that assumption is not always correct. There are numerous scenarios under which any attorney's email (even those rendering legal advice) will not be protected from subsequent disclosure. Therefore, when sending email, attorneys should exercise the same caution that they urge from their clients.
When the client waives privilege
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