California Notice of Attorney-Client Privilege Regarding E-Mail Transmission
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FAQ
Proposed rule 4.4 requires a lawyer who receives a writing relating to the representation of the lawyer's client and knows or reasonably should know that the writing is either privileged or subject to the work product doctrine, when it is reasonably apparent to the receiving lawyer that the writing was inadvertently ...
In fact, simply adding an attorney to an email does not invoke the attorney-client privilege at all. Rather, the privilege extends only to communications with counsel for the purpose of obtaining legal advice.
Attorney-client privilege covers communications (oral, written, emails, Zoom conferences, WhatsApp, etc.) back and forth between a client and the lawyer. It may also cover lateral or downstream communications among clients and other service providers in furtherance of a lawyer's handling of the case.
The attorney-client privilege does not apply to every communication with an attorney. For the privilege to exist, the communication must be to, from, or with an attorney, and intended to be confidential. In addition, the communication must be for the purpose of requesting or receiving legal advice.
You also must maintain the confidentiality of a communication. If you share the communication with a third party ? for example, by forwarding an email to someone outside of your business ? you can lose the protection of attorney-client privilege.
Privilege May Not Extend to Attachments Rather, if the ?attachment contains facts and not communications, the Court must evaluate whether the disclosure of the facts would somehow reveal a request for, or the content of, legal advice.? (See Townhouse Rest.
Crime or Fraud Exception. If a client seeks advice from an attorney to assist with the furtherance of a crime or fraud or the post-commission concealment of the crime or fraud, then the communication is not privileged.
