To my abject horror, I have recently observed, amongst some of my supposedly-sophisticated commercial clients, a growing trend to casually copy-in, forward on, or otherwise generally send around, lawyer-client conversations to secondary sources and recipients. That got me wondering – were these good folk just blithely doing something quite benign (“Hey Bob, FYI”), or were they in fact unintentionally sliding down the slippery-slope of abandoning their lawyer-client privilege?
That little moment of “Hmmmm…” quickly turned into a deeper dive into the landscape of Legal Professional Privilege (aka LPP) and lawyer-client confidentiality. Because, as quirky as it sounds, when you hit “Forward” on that keyboard, you may inadvertently be tearing up your right to keep otherwise protected information strictly between you and your lawyer.
So let’s unpack the legal jargon somewhat, shall we. LPP is every client’s right to have their discreet disclosures to their lawyers remain absolutely confidential, so they can get informed advice without any fear of the skeletons escaping from their closet.
For LPP to apply, a few key ingredients must generally be met: the communication has to be between a qualified lawyer and their client, it must be confidential, and it must be made either for the dominant purpose of obtaining legal advice, or for use in anticipated or actual litigation. It doesn’t matter whether the communication is written or oral, but emails count, and so do attachments (even if you didn’t read them all that closely). If the dominant purpose is legal advice, they’re covered.
But here’s the rub – privilege can be waived. And, once it is, it’s gone for good. So, what effect does the simple act of forwarding an email on have on LPP?
Well, when you hit “Forward” (or “Reply All” or any other share mechanism) some scary things can sometimes happen. For example, if you publish something with someone outside the lawyer‐client circle, a court may well interpret that as an indication of your intention not to keep it strictly confidential, thereby permitting it to be disclosed to others. If you change the context so the email becomes part of a broader non‐legal discussion (eg “Hey team, on the operations side, here’s what the lawyers said, FYI”), the dominant purpose may shift, thus endangering the privilege. And certainly, if you forward it to someone else who wasn’t in the email loop for the original legal advice purpose, that will be considered a strong sign of intended waiver.
So, here are my reflections, as well as some hopefully-helpful hints:
1. Pause before you forward.
If the email has legal advice or clearly privileged content, ask yourself, Is the recipient part of the lawyer-client relationship? Do they really need to see this? If not, think carefully before you blindly forward it.
2. Check purpose.
Ask Was the email sent for legal advice? Will on-forwarding convert it into a non‐legal context? Because when the dominant purpose shifts, the privilege is weakened.
3. Keep confidentiality alive.
If you must share, maybe extract and send on only what is absolutely necessary, or seek fresh advice for broader distribution.
4. Understand that waiver can be inadvertent.
You might think, “Oh I’m just showing my CEO what the lawyer said.” But that act itself may still be inconsistent with maintaining confidentiality.
5. If you’re the lawyer, warn the client.
Part of a lawyer’s duty is to ensure a valid claim of privilege isn’t lost. If you notice your client is inclined to forward emails widely, jump in and caution them immediately.
Remember, that “Forward” button is a kind of double-edged sword. On the one hand, everyone embraces greater communication, collaboration, and timely decision-making. On the other hand, if you peel away the cloak of confidentiality that privilege gives you, the result can come back to punish you.
So when you’re next tempted to tap that tiny forward button on your keyboard, stop and think – Are you about to let the world in where you don’t really want them?
