For example, if you write “PRIVILEGED AND CONFIDENTIAL” in the subject line of your email, it’s less likely that anyone would miss it. Many attorneys add a disclaimer to the “signature” block of their emails stating that the material in their emails is subject to attorney-client privilege. However, these disclaimers don’t provide blanket protection. A note in the subject line ensures that the recipient knows the email is privileged before they open it.
For example, if you’re in the process of getting a divorce and want advice on how to talk to your spouse about matters that concern your children, you might write: “I am writing this email to request legal advice regarding communication with my spouse about our daughter’s swimming lessons in a way that does not violate the judge’s order. "
For example, suppose you’ve hired an attorney to represent you in a recent lawsuit against your company. You also want to talk to that attorney about how you can revise your vendor contracts to avoid similar lawsuits in the future. Advice on contracts would likely be considered business advice, rather than legal advice, so you should write two separate emails.
For example, if you have a household email address that both you and your spouse use, avoid using that email to communicate with your attorney (unless the attorney is representing both you and your spouse in the same legal matter).
Even if someone else is involved in the matter that you’re discussing with your attorney, it’s better to email them separately. This may seem inefficient, but it ensures that your communications with your attorney remain privileged.
Don’t mention that you talked to your attorney about the topic at all if you want to avoid accidentally waiving your attorney-client privilege. For example, if someone asks you why you took a particular action, you wouldn’t want to say “I did what my attorney told me to do. " With that kind of statement, you’re basically telling the other person what your attorney told you in confidence.
For example, suppose you’ve consulted an attorney for advice on a lawsuit recently filed against your company. You may want to share the attorney’s advice with your business partner. However, if your partner isn’t considered the attorney’s client, this might mean that advice is no longer considered privileged. If you need to involve other people in a legal matter, your attorney can advise you on what to tell them and how so that your attorney-client privilege is preserved.
Likewise, if you’re forwarding an email or email chain to your attorney because it’s relevant to your case, mark the email clearly as a forward, then compose a separate email in which you ask for legal advice or relay any confidential information.
For example, if you’re in the middle of a contentious divorce and you want to get your attorney’s advice on damaging information you’ve learned about your spouse, meet with them in person rather than writing the information in an email. Call, rather than email, your attorney to let them know you want to meet to discuss a sensitive and confidential matter.
Set your devices so that they lock automatically if you’re not using them for a couple of minutes, and make sure you close or lock the device if you walk away from it.
If you receive emails on a smartphone or other mobile device, turn off the “preview” function that allows you to see part of the email through a notification on your home or lock screen. If you leave your phone laying on a table where anyone can see the preview, you could destroy the privileged nature of an email from your attorney.
For example, if you’re talking to an attorney about filing a discrimination lawsuit against your employer, wait until you get home to email them, rather than emailing them from your company computer. If the email passes through your company server, the company may have the right to access those emails.
For example, if you use Gmail, you can encrypt your emails through the Gmail mobile app or by using a Chrome extension. If your attorney sends you documents to review and you save them on your computer, encrypt those files as well so that only you can open them and read them.
