In a Massachusetts Superior Court decision, issued at the end of 2010, Charm v. Kohn, 27 Mass. L. Rptr. 421, 2010 WL 3816716 (Mass. Super. 2010), the Court ruled that an email that a client intended to send only to his lawyer, but which was accidentally sent to opposing counsel, was not admissible evidence. However, the Court warned that such accidental communications could lead to this type of evidence being admissible evidence in the future.
Counsel for Mr. Kohn emailed Charm’s attorney, with a carbon copy (cc) to Kohn’s co-counsel, and a blind copy (bcc) to his client, Mr. Kohn. Upon receiving the email, Kohn inadvertently selected the “reply all” feature to respond, intending only to communicate to his own attorneys, but accidentally copied opposing (Charm’s) counsel as well. Less than a half-hour later, Kohn’s counsel emailed Charm’s attorney, requesting that he delete Kohn’s email. Charm’s attorney refused to do so.
Generally, communications between attorneys and their clients are privileged and cannot be admitted into evidence. The purpose of the privilege is “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon lawyers being fully informed by the client.” Upjohn Co. v. United States, 449 US 383, 389 (1981).
However, communications that are intended to be shared with third parties are not protected by the attorney-client privilege. Commonwealth v. Noxon, 319 Mass 495, 543-544 (1946). A difficulty arises when these communications are accidentally revealed to an opposing party who is clearly not an intended recipient. In accidental disclosure cases, the information is only privileged if the client and attorney took reasonable steps to preserve confidentiality. Therefore, the issue for the Court in the Charm case was whether or not Kohn and his attorney took reasonable steps to preserve the confidentiality of their email communications.
There was some evidence that Kohn and his attorney did not act reasonably. Several months earlier, Kohn had communicated to opposing counsel in the same, accidental manner. Arguably, Kohn should have been more careful given his prior slip ups. Additionally, given Kohn’s prior “reply all” mistake, Kohn’s counsel might have known that there was a foreseeable risk that Kohn would again hit the “reply all” feature. Lastly, Kohn apparently did not attempt to resolve the dispute-, perhaps through a motion for protective order-, until Charm attempted to introduce the email into evidence in support of its motion for summary judgment.
Judge Fabricant appeared to recognize how commonly such a mistake occurs and instead, focused on the obvious unintentional nature of the communication with Charm’s counsel in excluding the evidence. Furthermore, the Court found it compelling that Kohn’s counsel wasted little time in immediately informing Charm’s counsel of the mistake.
The opinion indulged “human fallibility” in this instance, but cautioned that Kohn “should not expect similar indulgence again.” The court warned that the parties “and others, should take note: Reply all is risky. So is bcc. Further carelessness may compel a finding of waiver.”
Clients and attorneys alike should be cautious when communicating electronically to avoid carelessness that can result in disclosure of confidential information. Some information technology professionals advise that the BCC option be ‘hidden’ in e-mail software and, instead, copies get forwarded separately. While sending multiple emails takes a bit more time, it can prevent a recipient from accidentally selecting the ‘reply all’ feature and unintentionally communicating sensitive information to unauthorized individuals. As e-mail dissemination glitches are increasingly publicized through reported cases, other courts may, in the future, be far less understanding and may ultimately find waiver of this long-established privilege.
* Bennett & Belfort, P.C., wishes to thank our intern, David J. Mattern, for his work on this entry.
