Loss of Privilege on the Internet

There is no doubt that we are all more technologically advanced than ever. What used to be just a cell phone is now our phone, a camera, and it plays music. We are able to communicate with each other electronically 24 hours a day, and some of us have created relationships with others whom we have never met, having only communicated through E-mail, chat rooms, or social-networking sites such as MySpace, Facebook, or LinkedIn.

What we don’t consider is how these advanced means of communication may be creating a trail that we do not want to be followed.

Attorneys are always mindful of the attorney-client privilege. A prudent practitioner will take tremendous steps to see that communications between their client and themselves do not fall outside of that privilege. We instruct our clients as to the importance of the privilege and to take steps to insure that no one is privy to the communications so that the privilege may be lost.

What some may not realize, though, is that they may be losing this privilege via the use of E-mail or other forms of electronic communication. A question arises: when a client communicates with his attorney via E-mail, is this communication still protected by attorney-client privilege?

This issue that has yet to be addressed by the Appeals Court or the Supreme Judicial Court in the Commonwealth of Massachusetts, but it has begun to be addressed by courts in other jurisdictions. Notably, courts in the state of Tennessee in the case of Hazard v. Hazard stated that when one of the parties sent a letter to their attorney through the family computer, this communication was not protected by the attorney-client privilege. The court in the Hazard case reasoned that, because others had access to the computer, it was as if the husband was talking to his attorney with his wife in the room.

In addition to the ruling in the Hazard case, other jurisdictions have held that there is no expectation of privacy on the family computer even if you are able to ‘password protect’ your communications. The consensus of other jurisdictions on this issue is that if others have access to the computer, anything that you do on this computer is fair game.

This is not the first time that courts have determined that communications one might think are privileged are actually not safe from disclosure in the future. The issue arose previously when dealing with E-mail communications between a husband and wife.

In Massachusetts, there is a doctrine known as spousal disqualification. This represents the proposition that communications between a husband and wife are private and cannot be disclosed to others by either spouse. (Note: There are exceptions to this rule that are not detailed here because they are not relevant to this discussion.)

Courts in Massachusetts have held that this disqualification does not pertain to E-mails that are exchanged between the parties. The courts have reasoned that once the communication is put into writing, it is no longer to be considered subject to the disqualification. This may be somewhat disheartening to those who consistently use E-mail as a substitute for verbal communication and may now be faced with the prospect of being confronted with statements that would not otherwise be admissible, but now are because they have been reduced to writing.

How can you prevent losing the privilege as it relates to either attorney-client or spousal communications? Here are some simple tips:

If you must send something electronically, use a computer that cannot be accessed by anyone else. Don’t use the family computer, and don’t use your work computer. If the computer used is yours alone, you can expect whatever is sent from it to be private.

Think before you write. Resist the temptation to send your spouse a scathing E-mail message or to engage in any other inappropriate language. A simple rule to follow is to assume that whatever you send may be read by someone else, such as a judge.

Don’t communicate electronically when you can do it verbally. We all fall victim to the ease of E-mail, but as noted above, this can create a trail that you might otherwise wish did not exist.

Technology has made all of our lives more convenient in many ways, and it has allowed us to communicate in ways some may never have thought possible. But as we have seen, it can create pitfalls that we all may want to avoid.

Michael J. Grilli is an associate with the Springfield-based law firm of Bacon Wilson, P.C. His areas of expertise include divorce/family law, personal bankruptcy, and residential real estate; (413) 781-0560;[email protected]