by Richard Muñoz
As a young in-house lawyer, I had a mentor that hated email. “Pick up the phone or walk down the hall if you are going to give advice,” he would say wagging his finger at me. I told him that I had carefully limited the addressees, separated my legal advice from my business advice and used a big bold header that read “Attorney Client Communication” on my emails. I then gave him a gentle ribbing about keeping up with technology.
Times are a changing.
Many companies are using so-called “collaborative tools” to help their business teams achieve objectives. These tools allow employees and third parties to work together on projects and tasks on a variety of desktop and mobile device platforms. There are instant messaging products like Slack, intra-company social media sites like Yammer and project management systems like Teamwork. A key benefit of these collaborative tools is that they allow project members to instantly communicate and share ideas.
Typically, these collaboration tools have a centralized hub which provides a dashboard view of all related messages. At this hub, you can read or reply to messages from your entire project team. These messages are archived so they are searchable and easily retrievable. This means that current or future team members could potentially have access to every decision, discussion, link, file, and message the team created or posted on the project. These tools are designed to make communication instant and transparent.
Transparent communication can have some pitfalls, however. For example, you are Larry the in-house lawyer. Assume you are on Project X with three other company employees: Aaron, Betty, and Charlie. David, a non-paid intern from Miskatonic University, is also on the team along with Victor, an outside vendor. Aaron posts the following message on the hub for the whole team to see:
“Larry, do we need to pay David for his internship?”
As you draft your reply on the collaborative platform, you pause and wonder if the message would be considered confidential and protected by the attorney-client privilege?
We know that communications between the client, their attorney or their representatives are shielded by the attorney-client privilege as long as they are: (1) confidential and (2) made for the purpose of facilitating the rendering of legal advice. See Texas Rule of Evidence 503(b). The Texas Rules of Evidence define a communication as “confidential” if it is:
[N]ot intended to be disclosed to third persons other than those to whom the disclosure is made in furtherance of the rendition of the professional legal services to the client or those reasonably necessary for the transmission of the communication.
A court will look at the intent of the parties at the time the communication is made. Osborne v. Johnson, 954 S.W.2d 180, 184 (Tex. App.—Waco 1997, no pet.). There are a couple of Texas cases that hold that a communication from an attorney was not intended to be confidential if it is simultaneously transmitted to non-representatives of the client, Osborne at 190, or the communication is of the type that is one routinely copied to third parties, Cameron County v. Hinojosa, 760 S.W.2d 742, 746 (Tex. App.—Corpus Christi 1988). Thus, an attorney should avoid creating the appearance that the communication was not intended to be confidential.
Returning to our hypothetical, Aaron posted the question for the entire team to see, including David, the non-paid intern and Victor, the third-party vendor. If Larry posts an answer on the platform for the entire team to see, it could appear that neither he nor Aaron intended this communication to be confidential. Larry may wish to restrict who has access to his response.
Fortunately, most collaborative software has privacy settings that restrict who can read or access a message. These settings should be used to limit the message to recipients who need to know. If necessary, the privacy setting of a message could be used as evidence that the communication was intended to be confidential. As with email, attorneys should also consider using headers indicating that the communication is intended to render legal advice. Since the attorney-client privilege only applies to legal advice and not business advice, an attorney should put their legal advice into a separate message if possible. If you use such collaborative tools, these practices should help protect the confidentiality and attorney-client privilege of your communications.
I wagged my finger at a younger colleague when she introduced me to collaborative tools. She gave a gentle ribbing about keeping up with technology.
Richard Muñoz is the Assistant General Counsel for Buckner International, a non-profit organization that helps children, families and seniors. He can be reached at email@example.com.