2003-03 The Attorney-Client Privilege

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The advent and prevalent use of e-mail presents other issues of concern. Our clients often communicate with us via e-mail, and our attorneys often dispense advice or recommendations using this means. All e-mail communication should be regarded as privileged and confidential. Please guard against forwarding these e-mail messages (in part or in total) to any person outside of the County, as this would serve to compromise the attorney-client privilege. 5. Can I be held personally liable in a lawsuit, where it is learned I did not follow the advice of the Corporation Counsel? Yes. In an extreme case, assume our office provided an opinion on a certain issue. The department head, as the chief policy maker, disagreed with the opinion, and decided to act in a contrary manner (as is their prerogative to do so). In subsequent litigation directed against the County for alleged harm caused by the department head's decision, the aggrieved party will never know that the department head was advised not to take the selected course of action. However, if there has been a breach of the privilege (e.g., a communication is found wherein the department indicates they have consulted with Corporation Counsel, and some of the otherwise privileged discussions are referenced), a court may be called upon to rule whether the privilege has been legally waived. If a court finds the privilege no longer exists, all communications relevant to this issue may arguably be discoverable to the aggrieved party. Assuming the aggrieved party learns of the earlier privileged communication, the aggrieved party may then seek punitive damages against the department head personally, arguing that he/she was placed on notice that the aggrieved act was illegal, and that the action was therefore done with malice. Please note that this is an extreme example, intended to demonstrate what could happen in the "worst case scenario." Nonetheless, we thought it our responsibility to share with you what we believed was legally possible. 6. Is it permissible to share a "confidential" opinion or other communication from the Corporation Counsel with another department, or the Council? Yes, on a need-to-know basis, and under confidential cover. We have historically taken the position that although our attorneys service individual departments, the County as a whole is considered the "client" for purposes of the privilege. This is necessary, due to the legal requirements imposed by our laws. As an example, if a department is involved in litigation, the department head will 3