Attorney&Ndash;Client Privilege and The Work Product Doctrine: Is Confidentiality Lost In Email?, 1117 COBJ, Vol. 46, No. 10 Pg. 32

AuthorHERRICK K. LIDSTONE, JR., J.

46 Colo.Law. 32

Attorney–Client Privilege and the Work Product Doctrine: Is Confidentiality Lost in Email?

Vol. 46, No. 10 [Page 32]

The Colorado Lawyer

November, 2017

BUSINESS LAW

HERRICK K. LIDSTONE, JR., J.

The attorney-client privilege and the work-product doctrine are crucial to the attorney-client relationship. This article discusses how the use of email may impact these privileges.

Electronic mail communications are a fact of life. There is no getting around this benefit and burden. Yet the careless use of email devices and networks by both attorneys and clients risks die loss of confidentiality and other privileges. This is especially true when clients communicate with their lawyers using their employer-established email accounts on office computers or email their lawyers from computers they share with others, including family members. Issues can also arise when clients store personal emails and information on a business or shared laptop, smartphone, or tablet. Carelessness includes using inadequate passwords that are seldom, if ever, changed. These actions risk the loss of confidentiality and any attendant privilege that may be claimed for the electronic communications.

The risks inherent in email communications are well-documented. As described by the ABA Law Practice Division,

The headlines continue to be filled with reports of data breaches, now including law firms. A common adage in security (that applies to attorneys and law firms) is "there are two kinds of companies, those that have been breached and those that will be breached." A respected security consultant has aptly called the first hour of a breach response as "the upchuck hour."1 This environment raises issues regarding confidentiality and lawyer competence that 20th century lawyers never had to deal with—particularly the potential loss of attorney-client privilege and work-product protection as a result of uninformed communication techniques.

The Colorado Rules of Professional Conduct (Rules) require that lawyers "provide competent representation to a client,"2 and that within the parameters of that competent representation "a lawyer should keep abreast of... changes in communications and other relevant technologies."3 The implication is that it is the lawyer's obligation to protect the client's confidences in the face of electronic hacking and email sloppiness. This confidentially obligation is discussed below.

Confidentiality, Attorney-Client Privilege, and the Work-Product Doctrine

The attorney's confidentiality obligation established in Rule 1.6, the attorney-client privilege, and the work-product doctrine are key to the relationship between attorneys and clients.

Rule 1.6 and Confidentiality

The principle of client-lawyer confidentiality found in Rule 1.6 "is given effect by related bodies of law: the attorney-client privilege, the work-product doctrine and the rule of confidentiality established in professional ethics."4The lawyer's duty of confidentiality in Rule 1.6 is much broader than either the attorney-client privilege or the work-product doctrine. "The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law."5

Attorney- Client Privilege

The attorney-client privilege is the "client's right to refuse to disclose and to prevent any other person from disclosing confidential communications between the client and the attorney."6 The attorney-client privilege is "one of the oldest recognized privileges for confidential communications"7 and is codified in Colorado law.8The U.S. Supreme Court has stated that by assuring confidentiality, the privilege encourages clients to make "full and frank" disclosures to their attorneys, who are then better able to provide candid advice and effective representation.9

Although there are minor variations, generally the elements necessary to establish the attorney-client privilege are:

■ the asserted holder of the privilege is (or sought to become) a client;

■ the person to whom the communication was made is a member of the bar of a court, or a subordinate of such a member, and is acting as an attorney in connection with this communication; and

■ the communication was for the purpose of securing legal advice.10

Most jurisdictions provide exceptions to the attorney-client privilege. Chief among the exceptions are that the communication (1) was made in the presence of individuals who were neither attorney nor client, or (2) was disclosed to such individuals. When a client discloses attorney-client privileged information to a third party, the privilege may be lost. This may occur when

■ a member of the board of directors of a company discloses attorney-client privileged information to a third party not in the management group in a casual conversation or by forwarding an email;

■ an operator receives a tide opinion that includes attorney-client privileged information and then discloses the information to working interest owners; or

■ a client claims reliance on the advice of counsel for certain actions taken based on attorney-client privileged information.

Attorney-client information may also be disclosed inadvertently, such as when the attorney or client sends an email or attachment to an erroneous address.11 Many attorneys believe that the ubiquitous email disclaimer protects a misdirected communication containing attorney-client privileged information or attorney work-product, but this is not necessarily the case.12

In DCP Midstream LP v. Anadarko Petroleum Corp.,13 the Colorado Supreme Court reviewed claims of attorney-client privilege relating to an attorney's tide opinion to determine "whether a particular communication concerns or contains confidential matters communicated by or to the client in the course of obtaining counsel, advice or direction." The argument made to the district court was that a title opinion was merely a recitation of facts in the public record and, therefore, not protected. Anadarko countered that "title opinions are privileged as a matter of law."14 In conclusion, the Colorado Supreme Court stated:

[W]e avoid making any sweeping pronouncement that all title opinions are, or are not, protected by the attorney-client privilege. Just as "there is no flat rule exempting all communications between a title attorney and a client from the reach of die attorney-client privilege," there is no flat rule including diem. [Citation omitted.] Rather, a particular title opinion, like any document sought in discovery, may contain privileged attorney-client communications if the parameters of that doctrine are met. To make this determination, the particular title opinions must be examined.

... [T]he party asserting the privilege bears die burden of establishing that a particular communication is privileged, and die party must claim the privilege "with respect to each specific communication." ... To withhold discovery under a claim of privilege, C.R.C.P. 26(b)(5) requires a party to "make the claim expressly" and describe the nature of the withheld information in a privilege log___ The with held information must be described "with sufficient detail so that the opposing party and, if necessary, the trial court can assess the claim of privilege as to each withheld communication”

15 [Emphasis in original.]

Furthermore, the attorney-client privilege is the client's privilege to maintain or waive; it is not the attorney's privilege.16

The Work-Product Doctrine

The work-product doctrine is separate from and should not be confused with the attorney-client privilege. Under the work-product doctrine, "tangible material (or its intangible equivalent)"17 that is collected or prepared in anticipation of litigation is not discoverable unless the party seeking the information has no other means of obtaining the information without undue hardship.18 Where the required showing is made, the court will still protect mental impressions of an attorney by redacting die part of the document containing the mental impressions. The Colorado Supreme Court has described the work-product doctrine by reference to the U.S. Supreme Court's opinion in Hickman v. Taylor19:

In Hickman the Court held that "written statements, private memoranda and personal recollections prepared by an adverse party's counsel in the course of his legal duties" are not discoverable in the absence of a showing of necessity or justification. In the wake of Hickman conflicting views developed over (1) whether discovery of trial preparation materials required only a showing of relevancy and lack of privilege, or an additional showing of necessity, (2) whether the work pro duct doctrine extends beyond work actually performed by lawyers, and (3) what relationship, if any, existed between the "good cause" requirement of Rule 34 and the "necessity or justification" of the work product doctrine.20

The work-product doctrine is more inclusive than the attorney-client privilege. Unlike the attorney-client privilege, which includes only communications between an attorney and the client, work-product includes materials prepared by persons other than die attorney. The materials may have been prepared by anybody as long as they were prepared with an eye toward the realistic possibility of impending litigation. Additionally, it includes materials collected for the attorney, such as interrogatories, signed statements, and other information acquired for the prosecution or defense of a case. However, "memoranda, briefs, communications, and...

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