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Understanding Attorney-Client Privileged Communication

 

Applies to: Exchange Server 2007 SP3, Exchange Server 2007 SP2, Exchange Server 2007 SP1, Exchange Server 2007

Topic Last Modified: 2007-04-24

This topic describes the concept of attorney-client privileged communication and how you can use Microsoft Exchange Server 2007 to configure message classifications and e-mail message-handling rules to meet your organization's requirements.

The attorney-client privilege is a legal doctrine that is intended to protect the confidentiality of communications between an attorney and his or her client. The underlying rationale is that by assuring confidential communications, lawyers and their clients will feel free to discuss sensitive legal matters thoroughly. Communications that meet the legal tests that define the privilege can be held confidentially. Disclosure of those communications cannot be compelled by anyone as long as the client does not want the communication disclosed.

To qualify as an attorney-client privileged communication, in general, a communication must meet all the following criteria:

  • It must be between an attorney and a client.

  • It must be for the purpose of seeking or providing legal advice.

  • It must be intended to be confidential. And confidentiality must be strictly maintained.

noteNote:
The rules related to the doctrine of attorney-client privilege may vary by jurisdiction. The information that is contained in this topic is not intended to define the privilege or how to ensure protection. This topic is merely informational to highlight features that may help you in your attempts to improve protection for attorney-client privileged communication. The declaration of attorney-client privilege on a message does not guarantee the contents of the message cannot be disclosed.

To use the attorney-client privilege when you communicate with an attorney by using e-mail, you typically have to declare that your message is intended to be privileged communication between you and your attorney and take reasonable steps to make sure that only your attorneys are addressed on the message. The following are examples of requirements that an organization may apply to messages that it wishes to preserve under the attorney-client privilege:

  • An attorney should be on the To: line of the message.

  • No recipients outside the organization should be present on the message.

  • The subject or body of the message should contain the text "Attorney Client Privileged" or similar wording that clearly specifies that the message is intended as attorney-client privileged communication.

  • The message should not be forwarded except by the attorneys or at the direction of the attorneys.

In earlier versions of Exchange Server, recipients and senders had to manually apply organizational requirements, such as attorney-client privilege requirements, to their messages. In the following circumstances, recipients and senders might unintentionally omit a step or mistakenly forward a privileged message to an external recipient:

  • They didn't fully understand complex policies and related procedures.

  • They were unaware of these policies and procedures.

Therefore senders and recipients might unknowingly waive the attorney-client privilege. In Exchange 2007, message classifications help reduce the possibility of such user error.

Message classifications are an Exchange 2007 and Microsoft Office Outlook 2007 feature that can help reduce the burden on senders and recipients by helping ensure that their messages meet the attorney-client privilege requirements that are adopted by their organization.

When a message is "classified" by the sender, specific metadata is added to the message to describe the intended use or audience of the message. This data can be used by Outlook 2007 or Microsoft Office Outlook Web Access to display user-friendly descriptions of the classification to the senders and recipients of the message. This description can include instructions on how the message should be handled to maintain the attorney-client privilege.

In addition to displaying instructions to the sender and recipients of the message, Exchange 2007 can also enforce the attorney-client privilege requirements when the message enters the transport pipeline. In a typical scenario, you can use transport rules on computers that have the Hub Transport server role installed to identify messages to which the Attorney/Client Privileged (A/C Privileged) message classification has been applied. If the Attorney/Client Privileged (A/C Privileged) message classification has been applied, the transport rules can check whether the message meets the organization's list of attorney-client privilege requirements. If the message does not meet the requirements, the message may be returned to the sender.

For more information about message classifications and transport rules, see the following topics:

By default, Exchange 2007 includes an Attorney/Client Privileged (A/C Privileged) message classification. You can view the configuration of the message classification by running the following command in the Exchange Management Shell:

Get-MessageClassification ExACPrivileged | Format-List

You can modify the recipient and sender classification descriptions on the message classification. For more information about the various message classification options that you can configure, see Set-MessageClassification.

After you have verified that the ExACPrivileged message classification is suitable for your use, you must deploy the message classification to all Outlook 2007 clients. For more information about how to deploy message classifications to Outlook 2007 clients, see How to Deploy Message Classification for Outlook 2007. Changes to message classifications are immediately available to users who use Outlook Web Access.

After you have configured and deployed the message classification to your Outlook 2007 users, you must configure transport rules to enforce your policies. For more information about how to create transport rules to support the Attorney/Client Privileged (A/C Privileged) message classification, see How to Customize Default Message Classifications.

 
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