An attorney-client work product disclaimer is defined in the same way across all jurisdictions. It consists of a client, an attorney, communication, the anticipation and preservation of confidentiality, and a request for legal assistance or advice. It is the fifth condition — the requirement of legal assistance or advice being sought — that can prove problematic.

The law states that communication between a lawyer and his or her client is only protected if the primary purpose of that communication is to provide legal advice. That means that if a lawyer sent his client business advice in an email, then that email does not fall under attorney-client protection.

In a classic example of attorney-client protection, an email is addressed privately to a lawyer. It is not circulated to anybody else and asks a question that is easy to define as a legal one. In this case, attorney-client protection will apply to the email, as well as to any documents attached to that email.

Ensuring attorney-client privilege in more complicated circumstances

Attorney-client privilege is complicated by an email or memorandum having multiple purposes. If, for example, the email is sent to the lawyer and somebody else is copied in, attorney-client protection may not apply. In other cases, lawyers may provide non-legal advice such as technical or scientific information. This can also compromise attorney-client protection.

In situations where lawyers provide grammatical, editorial, or scientific edits, or comment on everyday business communication, the privilege of attorney-client protection is more difficult to prove. An analysis of case law shows that courts find attorney-client privilege only under very specific circumstances. There are measures that can be taken to increase the probability of a court finding that the main purpose of an email or memorandum was of a legal nature.

Ensuring that correspondence is seen to be of a legal nature

When requesting legal advice on a draft or document, make sure that it is sent only to the attorney — do not copy an attorney in on an email that is sent to many people. This is an important part of email management. Make it clear that the attorney is being asked to review the document and provide his or her input from a legal point of view. This also applies when you forward a document to a lawyer. Make it clear that the document being forwarded pertains to a legal matter. For example, you could say one of the following:

  • “Please look over the attached document and provide me with legal advice accordingly.”
  • “The documents attached are related to the investigation that we discussed at our previous meeting.”
  • “I have attached the documents that you asked for with regards to the legal matter that we discussed.”

It's important to ensure that your employees know better than to forward emails containing legal advice to large groups of people. If an email has been broadly circulated, then privilege could be waived in court.

By drafting privileged emails and documents in certain ways, you can make it easier for them to be identified by document reviewers. This can prevent them from being inadvertently produced.

  • When an email is sent by an attorney, it should include a statement that the information it contains is privileged and confidential. Including this in an email signature is a great way to ensure that it is never left out.
  • When compiling a Word document, include a header on every page with the words “privileged and confidential” or “attorney-client communication.”
  • In a spreadsheet, the words “privileged and confidential” or “attorney-client communication" must appear in the first row of the spreadsheet, as well as in a header or footer. Failure to insert it into a header or footer will mean that the privilege notification will not be seen unless the document is viewed in print preview mode.
  • When preparing a PowerPoint presentation, ensure that the words “privileged and confidential” or “attorney-client communication” are placed in a text box on each slide. The notification of privilege should not be part of the presentation template, as it will not show up in any text search carried out on the presentation. Also, if a document reviewer viewed the presentation in text mode, this privilege notification would not show up.

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