Anonymous wrote:The lawyer emails I’ve seen produced are almost exclusively situations where an in house lawyer is venturing beyond simply providing legal advice and is instead providing business advice, general commentary, is performing a factual investigation, or is reaching outside the client for some kind of support.

The problem in my experience is that in house lawyers often were not really trained on privilege and don’t have a great sense of what is privileged. But an email that say something like “you asked me for my legal opinion on C and provided these background facts. Upon review of those facts, my legal opinion is Y. The analysis supporting that opinions is ….” That email is easy to defend as privileged.

Anonymous wrote:Fed here. Soooo many Fed lawyers won’t give any advice whatsoever in emails. It’s frustrating.

Anonymous wrote:You must not be dealing with sophisticated and complex legal issues if they can be handled by phone. Writing out my answers to sensitive issues is necessary because the answers are not straightforward, and in order for them to be fully developed with ample reasoning and analysis of risks, they almost always need to be in writing. I've learned that most discussion that happens verbally without proper research, thought, and development is unreliable.

Anonymous wrote:You must not be dealing with sophisticated and complex legal issues if they can be handled by phone. Writing out my answers to sensitive issues is necessary because the answers are not straightforward, and in order for them to be fully developed with ample reasoning and analysis of risks, they almost always need to be in writing. I've learned that most discussion that happens verbally without proper research, thought, and development is unreliable.

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Anonymous wrote:I am really, really careful about this due to how many times I have, as a litigator, found smoking guns in emails. Privilege isn't always relevant to my sensitivity on this, because it is not absolute. I've worked on several cases where documents the lawyers believed at the time would be protected by privilege ultimately weren't.

I can only assume you mean non lawyer emails. Obviously. Different animal

+1. Another litigator here. Internal emails among exclusively lawyers (even if in-house lawyers) are not something that “many times” end up discoverable.

Over the course of my career I have seen “many times” emails the lawyers believed would never be in discovery, end up in discovery. Examples: fiduciary duty lawsuits, malpractice lawsuits, emails that ended up getting forwarded outside the original chain, emails that ended up getting new people added including an underlying email down chain, and, of course, emails that simply shouldn’t have been produced but were anyway due to doc review fck up.

+1. I have seen entire email chains made public simply because one person was added that broke the privilege. Today I never assume emails will remain privileged.

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Anonymous wrote:I am really, really careful about this due to how many times I have, as a litigator, found smoking guns in emails. Privilege isn't always relevant to my sensitivity on this, because it is not absolute. I've worked on several cases where documents the lawyers believed at the time would be protected by privilege ultimately weren't.

I can only assume you mean non lawyer emails. Obviously. Different animal

Privilege is not absolute. And just because an attorney believed an email was privileged at the time doesn't mean a judge will agree during in camera review.

I'm an attorney, and I am careful about what I put into emails. If I think something could be misconstrued, it's a phone call.

In-house lawyers cannot effectively support a business with this kind of extremely inefficient risk-averse posture. Far-fetched scenarios about potential litigation should not drive everything. Write an email to your colleagues like a normal person.

Depends on your experience, I guess. I was in house for ~15 years. And yes, email was often easier, especially when dealing with significant differences in time zones or co-workers in other countries for whom English was a second language. But I also saw multiple problems created that could have been avoided by a phone call instead of a hastily written and poorly phrased email. And the belief that many non-lawyer coworkers had that any email marked "privileged" with in house counsel cc'd was absolutely protected from discovery created multiple headaches.

It may depend on how frequently your company is involved in litigation. For us, litigation was not a far-fetched possibility but a continuing occurrence, due at least in part to our size and the nature of our business (media/tech) rather than any misdoing on our part. A hasty email could be extremely expensive down the road.

I'm not saying that everything had to be a phone call. But definitely phone calls and meetings to discuss things, followed by a professional email summarizing the discussion, were best for sensitive discussions that could be misconstrued if taken out of context. And of course, it's a judgement call as to what is sensitive enough to require the extra effort to be handled that way. That judgement is part of the value that in house counsel brings to the table.

Again, we’re not talking about “non-lawyer colleagues.” OP is talking about one lawyer refusing to email other lawyers in the company. That kind of thing coming up in discovery is a very remote possibility.

Not the person you’re responding to, but one of the “very sensitive” posters upchain. I agree with you that, bottom line, it sounds like this junior lawyer is being too risk averse. But also it sounds like OP is not a lawyer so maybe doesn’t get how some of us have become so paranoid.

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Anonymous wrote:I am really, really careful about this due to how many times I have, as a litigator, found smoking guns in emails. Privilege isn't always relevant to my sensitivity on this, because it is not absolute. I've worked on several cases where documents the lawyers believed at the time would be protected by privilege ultimately weren't.

I can only assume you mean non lawyer emails. Obviously. Different animal

Privilege is not absolute. And just because an attorney believed an email was privileged at the time doesn't mean a judge will agree during in camera review.

I'm an attorney, and I am careful about what I put into emails. If I think something could be misconstrued, it's a phone call.