Attorney–Client Privilege in Electronic Communications

Effective Strategies for Preserving the Privilege and Maintaining Confidentiality

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, January 21, 2009

or call 1-800-926-7926
Program Materials

This seminar will examine attorney-client privilege in the context of electronic communications, the different ways the privilege may be waived, and best practices to implement to preserve the privilege.

Description

Protection of the attorney–client privilege is critical to the attorney–client relationship. With the new e-discovery rules and the prevalence of electronic communication, preserving client confidentiality is more challenging than ever.

While email is the most common method of electronic communication, there are many alternative methods that must be considered when protection of the attorney–client privilege is at stake.

It is critical that both clients and counsel take proactive steps to protect all attorney–client communications — whatever the medium.

Listen as our authoritative panel of litigation specialists examines the attorney–client privilege in the context of electronic communications, waiver of the privilege, and best practices to implement to preserve the privilege.

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Outline

  1. Key concerns about privilege
    1. Who has the privilege?
    2. Expectation of privacy
    3. When does privilege arise?
    4. Impact of the amended Federal Rules
    5. Alternative electronic communications and their inherent risks
  2. Ethical and legal guidance
    1. ABA and state bar association guidelines and opinions
    2. Court decisions
  3. Waiver
    1. Who can waive the privilege?
    2. Implied waiver
    3. Boilerplate disclaimers
    4. Waiver to governmental agencies
    5. Security of communication
    6. Inadvertent disclosure
  4. Employment litigation context
    1. Communication by employee to attorney using computer at work
    2. Four-part test to determine reasonable expectation of privacy
  5. Best practices for preserving the privilege
    1. Considerations for protecting the privilege in email
    2. Encryption and passwords
    3. Removal of metadata
    4. Education/training
    5. Control privileged material to reduce possibility of waiver
    6. Limited waiver agreements (courts split on enforceability)

Benefits

The panel will review these and other key questions:

  • How does online communication change the reasonable expectation of privacy?
  • How can attorneys protect clients’ privacy rights and attorney–client privilege while utilizing online communication?
  • What guidance is available through ABA, state bar and court opinions to attorneys regarding the attorney–client privilege and confidentiality in e-communications?

Faculty

John J. Rosenthal
John J. Rosenthal
Partner
Winston & Strawn

He handles complex antitrust and litigation matters and is experienced in electronic discovery and risk reduction from...  |  Read More

David J. Goldstone
David J. Goldstone
Partner
Goodwin Procter

He focuses on litigation relating to computer technologies and the Internet. He has extensive experience in...  |  Read More

David M. Greenwald
David M. Greenwald
Partner
Jenner & Block

Mr. Greenwald is a tested trial lawyer with over 27 years of commercial litigation, domestic and international...  |  Read More

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CLE On-Demand Audio

$297