Ex hits ‘reply all’ on confidential emails

I’ve seen a lot of emails back and forth with my lawyer and my wife’s lawyer lately. My wife’s lawyer copies my wife on all her emails. My lawyer forwards emails to me after the fact. Several times my wife has hit “reply all” and copies my lawyer on emails. My lawyer then gets mad and tells her lawyer to make it stop.

I get that it’s annoying for my lawyer to continuously receive her “stream of consciousness” emails but I don’t understand why he is making such a big deal out of it. Am I missing something?

You are indeed. There are a number of issues at play here. First of all, one of the most important things a client has during their case is the confidentiality in communications with their attorney. The last thing a lawyer wants to see is their client opening the door in such a way that communication with their client becomes “discoverable” by the other side, thus nullifying the privilege. What better way for your wife to open the privilege door than to openly send emails directly to your lawyer?

A huge problem with our electronic age is that everyone seems to want to operate at the speed of light while trying to multitask. People do not pay attention to what they are doing and do not think through the consequences of careless actions. As a result, “reply all” mistakes happen frequently.

If you want to learn more about this issue, Google Superior Court case Charm v. Kohn. The court in that 2010 case issued a warning to litigants and counsel alike that using the reply all and bcc functions is risky business and may result in a finding that the attorney-client privilege is waived.

From that point forward, most lawyers I know became far more careful in how they convey information to their clients. The forwarding option is far better than the blind copy option because if the client hits reply all on a forwarded message, it will not go to opposing counsel. Arguably an attorney who is still copying or blind copying their clients on emails to opposing counsel is exposing themselves to an ethical complaint. It is just not a risk worth taking.

Your attorney is doing this the right way. He is getting frustrated because, aside from not wanting to read your wife’s stream of consciousness emails, he does not want to be involved in the headache of arguing about whether she has waived her privilege if she divulges something valuable in one of those reply all emails. While it may seem like a good thing, strategically, to know what the other side is up to, the reality is most lawyers would prefer the other side to keep the privilege intact and learn things through proper channels.

Wendy O. Hickey has since 1994 been involved in and since 2003 been a trial lawyer who concentrates her practice on national and international family law. Any legal advice in this column is general in nature, and does not establish a lawyer-client relationship. Send questions to dearwendy@bostonherald.com.