Protecting the Attorney-Client Privilege in E-mail:
Several Easy Steps for Corporations
By Christopher J. Petelle
A privileged communication is one in which confidential information is transmitted between an attorney and a client for the purpose of seeking, obtaining or providing legal assistance to the client. When a corporation retains an attorney, subsequent communications between that attorney and any members of the corporation's “control group" may be protected by the attorney-client privilege. Illinois case law has defined control group to include anyone whose advisory role to top management is such that a decision would not normally be made without that individual’s input, and whose opinion forms the basis of any final decision by those with actual authority.
This protection is certainly not new. And yet, in the age of e-mail and with the advent of the new electronic discovery rules, it is now more challenging than ever for corporations to take proactive steps to maintain their privilege when they are involved in litigation. Here are a few simple, practical questions for corporate officers and employees to bear in mind in order to protect the corporation's privilege when writing an e-mail.
1) Am I within the control group?
Under Illinois law, only communications between members of the control group and the corporation's counsel are privileged. To determine if you are within the control group, ask yourself if you are involved in making final decisions on an issue relating to the representation, or if you are in an advisory role to top management such that your input would be required in any final decision on an issue relating to the representation. If the answer to either of these questions is "yes," your communications may be privileged.
2) What topics am I addressing in my e-mail?
Even assuming that you are within the control group, not all of your communications with the corporation's attorney are privileged. Only e-mails that transmit confidential information for the purpose of seeking, obtaining or providing legal advice for the corporation are privileged. In this age of casual electronic communications, non-privileged e-mail between attorneys and clients is quite common, and can lead to embarrassing and damaging disclosures of non-privileged information.
3) Am I communicating with the corporation's attorney?
The attorney-client privilege only protects communications between attorneys and their clients. Therefore, assuming that you are in a corporation’s control group, the next question to ask yourself is whether you are communicating with an attorney when you compose an e-mail. If you are not, the contents of that message are not privileged. All too often, control group members will communicate with one another about how to address a given legal issue, and only subsequently forward those communications to counsel. In such situations, the communications among the control group that do not include an attorney are not privileged.
4) Who else is receiving the communication?
On the other hand, merely including an attorney as a recipient on every communication does not necessarily protect privilege. For example, several tobacco companies tried this strategy in the 1960s by including lawyers on the distribution list for all internal scientific studies on the health effects of tobacco. To the surprise of those companies, this approach did not successfully protect their privilege because the communications in question were sent to a great variety of people, and often did not contain any legal question or advice. As stated above, communications that do not pertain to legal advice are not privileged. Moreover, by including a large number of recipients on an otherwise privileged communication, it is possible to destroy the privilege by sending it to someone outside of the control group.
In order to maintain the privilege, simply remember the control group test. Ask yourself: "Is every recipient either someone in top management, or someone in an advisory role upon whose advice top management would rely in this situation?" Or, more simply: "Does every recipient need this information, or need to be included in this decision?" When in doubt about a particular individual, delete that person from the distribution list and consult your attorney.
5) Does everyone realize that the e-mail is meant to be privileged?
When someone forwards a privileged communication to a person outside of the attorney-client relationship, it destroys the privilege of that communication. For instance, if an attorney sends an e-mail containing legal advice to a corporate officer, and that officer forwards the message to a group that includes a personal assistant, an outside consultant, a partner in a business venture or someone else who is not in the corporation's control group, the officer has likely waived that communication's privilege.
Furthermore, when a member of the control group writes an e-mail that is intended to be privileged, he or she should always say so. Simply include a header to that effect, or state it within the first few lines of the message. Although many people, including attorneys, incorporate such language at the end of their e-mails, these riders have become so common that they are often overlooked or ignored. Therefore, it is important to give recipients a clear understanding up front that the e-mail is intended to be privileged, and that they should act with due discretion.
By always considering these five questions, control group members involved in litigation can help a corporation guard its privileged e-mail correspondence from unintentional disclosure. However, the simplest way to protect privileged communications may be to adopt a policy that limits the volume of internal e-mail correspondence regarding ongoing litigation. Although this approach may create short-term hardships, it will go a long way toward protecting the corporation from inadvertently disclosing confidential information during discovery.
Christopher J. Petelle represents clients in a broad range of commercial disputes and criminal investigations in both state and federal courts. Chris has particular experience with appellate criminal litigation and complex federal whistleblower litigation. Prior to joining the firm, he served as an Assistant State’s Attorney in Cook County’s Criminal Appeals and Civil Divisions, where he oversaw ongoing appeals in the Illinois Supreme Court and Illinois Appellate Court, conducted constitutional research and prepared numerous appellate briefs and motions. Chris can be reached at 312.521.2639 or cpetelle@muchshelist.com.
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