Email as a Legal Form of Communication
Email can be a legal form of communication with protections in certain contexts and little legal protection in others. For law offices, it is important to be mindful of the purpose of an email message and of how it could be used or seen in the wrong context.
To protect your email messages, it helps to follow your own protocol and know how the law sees your communications.
Is Email a Legal Form of Communication?
In the United States, email in a privileged relationship context is generally protected. The attorney-client privilege usually applies even if legal advice is dispensed via email. Outside the US, these communications may be protected or may be treated differently.
Of course, certain factors usually have to be met before the communication is legally protected:
- Communication in a privileged relationship: The attorney-client relationship is one example.
- Legal advice: If legal advice is given rather than business advice or personal advice, that is a protected conversation.
- Privacy: If the expectation of privacy is there and the right to privacy hasn't been waived.
To ensure that your communications are recognized as legal, it helps to follow a particular format and protocol for protected communications.
What is the Format for Legal Email Communications?
Depending on the level of protection the law offers your communications, you may need a specific format. You should do your own research and due diligence to determine how to keep your communications protected and assert their protected status in the event it is challenged in court.
Here is a format you can use to help indicate the legally protected status of your emails:
- Beginning of email: In a legal email, starting the message with something like, "You've asked for my legal advice on..." clearly states the purpose of the message and may help establish the privileged nature of the email.
- Avoid "Confidential" signatures: Consider avoiding a "confidential and privileged" stamp in your email signature, since doing that with every message regardless of content could just make it harder to argue later that a specific message carries unique significance.
- Be selective: If you can use a different form of communication and it seems more appropriate for the situation than email, consider using that as an alternative.
How Does the Use of Email in Legal Communications Relate to CCaaS and VoIP?
Call centers and software may be a conduit for transmitting legal communications, but this doesn't change the privileged nature of the content. Even if the legal content is delivered through a communications platform, the usual protections still apply.
While protected, privileged conversations do generally remain protected even with a conduit such as call center software to transmit the messages. Non-privileged conversations, however, should be used with care.
Here are some tips for non-privileged communications:
- Delete isn't enough: Messages aren't really totally gone even after they're deleted. Don't be casual with your emails. One test you can use---would you want the president of your company reading that message?
- Adding the word "Confidential": The words or disclaimers you add to your messages isn't always enough to give a message privileged status.
- Be careful with your smartphone: Smartphones sometimes encourage their users to apply a careless attitude towards communications. Some smartphone users write and send off messages without giving the content much thought. Stop and think about the messages before you hit "send."
Non-privileged email can very easily fall into the "wrong" hands. You may want to consider keeping a separate email address for privileged communications, so you can remind yourself of the separation between privileged and non-privileged email.
How Do I Get Started with Legal Email Communications?
Legal communications protect privileged conversations. Emails can be privileged if they are sent with the expectation of privacy and occur within a privileged relationship. Ideally, companies shouldn't send emails they wouldn't want the president of the organization to read. Following a specific protocol may help protect the confidentiality and privilege of specific messages.
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