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Do you routinely advise a client who is employed not to use his/her employer's email service or company issued smartphone to communicate with you? Do you send messages to your clients at their workplace?
If your answer to either question is "no," you can be in trouble. A client who loses the protection of the attorney-client privilege (and your malpractice insurance carrier) may not like it if you did not follow your duty (repeat – duty) to specifically tell your client not to use his/her employer's email service or company issued smartphone to communicate with you.
Any doubt in your mind about this? Then read Opinion 11-459 Duty to protect the confidentiality of email communications with one's client, ABA Standing Committee on Ethics and Professional Responsibility (Aug. 4, 2011). To sum the ABA's opinion up:
Whenever there is significant risk that any third party will have access to the communication then "the lawyer must take reasonable care to protect the confidentiality of the communication by giving appropriately tailored advice to the client." [Emphasis supplied.]
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