Copying a Lawyer on an Email Does Not Assure Privilege Protection

May 9, 2012

The attorney-client privilege only protects communications primarily motivated by the client’s need for legal advice. It should go without saying that simply “cc’ing” a lawyer on an email does not satisfy this demanding standard.

In Travelers of New Jersey v. Weisman, Dkt. No. A-4085-10T4, 2012 N.J. Super. Unpub. LEXIS 567 (N.J. Super. Ct. App. Div. Mar. 15, 2012), the court took the generally accepted view that emails do not automatically deserve protection simply because a lawyer received a copy. The court also noted that “[f]rom our sampling of the file, it appears that [defendant’s] in-house attorneys rarely responded to these e-mails, if at all.” Id. at *29.

The privilege exists to protect clients’ communications of bad facts, worries, admissions, etc., to their lawyers – without fear that any third party will ever see those communications. Perhaps the worst scenario involves a client’s false belief that a communication deserves privilege protection when it probably does not. Corporate employees “cc’ing” an in-house lawyer in the mistaken belief that this assures privilege protection might see their supposedly private and potentially damaging emails marked as trial exhibits.

Thomas E. Spahn