Such a precaution, the court suggested, could have discouraged third parties from reading the communication. The court also noted that access to incoming and outgoing faxes was available to general employees of the corporate client, further evidencing a failure to maintain the integrity of the privileged communication. They should also alert unintended recipients to disregard the information to which they have mistakenly been exposed. Any claims to privilege will depend, in great part, on the precautions that have been taken by the law firm, the manner in which the firm has set up its computer system, the accessibility of the information to employees and the manner in which E-mail is stored and organized. The legal profession is a relative newcomer to E-mail, but the technology has now taken hold, and lawyers are regularly communicating via the Internet.
Clients expect, and some demand, E-mail accessibility with their lawyers.
The trend will only grow, and lawyers must remain vigilant in protecting the confidentiality of communications and avoid unintended waivers of the attorney-client privilege. L.L.P. Philip P. Andriola is an associate at the firm. If the firm uses a commercial server, it receives the security offered by the service provider.