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Understanding Attorney-Client Privileged Communication

Exchange 2010
 

Applies to: Exchange Server 2010 SP3, Exchange Server 2010 SP2

Topic Last Modified: 2010-01-20

In Microsoft Exchange Server 2010, you can use message classifications and transport rules to comply with your organization's messaging policies. For example, a message classification for attorney-client privileged communication could be used to identify messages that should be considered confidential and that contain privileged information that should only be shared between an attorney and their client. This topic provides an overview about this scenario for an Exchange organization.

For more detailed information about deploying an attorney-client privileged message classification, see Deploy an Attorney-Client Privileged Message Classification. Looking for other management tasks related to message classifications? See Managing Message Classifications.

Contents

Attorney-Client Privileged Communication Concepts

Enabling Attorney-Client Privileged Communication with Exchange 2010

Attorney-Client Privileged Message Classification

The attorney-client privilege is a legal doctrine that is intended to protect the confidentiality of communication between an attorney and his or her client. By assuring confidential communication, lawyers and their clients will feel free to discuss sensitive legal matters thoroughly. Communication that meets the legal tests that define the privilege is considered confidential. Disclosure of that communication can't be compelled by anyone if the client doesn't want the communication disclosed.

To qualify as an attorney-client privileged communication, in general, 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. Confidentiality must be strictly maintained.

noteNote:
The rules related to the doctrine of attorney-client privilege may vary by jurisdiction. The information contained in this topic isn't intended to define the privilege or how to ensure protection. This topic is intended to highlight features that may help you in your attempts to improve protection for attorney-client privileged communication that occurs by e-mail using Exchange 2010. The declaration of attorney-client privilege on a message doesn't guarantee that the contents of the message can't be disclosed.

To use the attorney-client privilege when you communicate with an attorney by using e-mail, you typically must declare that your message is intended to be privileged communication between you and your attorney. You must also take reasonable steps to make sure that only your attorney is addressed on the message. The following are examples of requirements that an organization may apply to messages that it wants 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 shouldn't be forwarded except by the attorney or at the direction of the attorney.

  • The message should be rights-protected.

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.

By inadvertently violating organizational or regulatory requirements for attorney-client privileged communications, senders and recipients may unknowingly waive the attorney-client privilege. In Exchange 2010, message classifications and transport rules help reduce the possibility of such user errors by alerting users that special handling requirements may be needed for specific message classifications.

A custom attorney-client privileged message classification in an Exchange 2010 organization can help reduce the burden on senders and recipients by helping ensure that their messages meet the attorney-client privilege policy requirements adopted by the organization. This classification can be used to display a user-friendly description of the attorney-client privileged classification to the senders and recipients of the message. It can also include specific instructions about how the message should be handled to maintain the attorney-client privilege.

In addition to displaying specific instructions to the sender and recipients of the message, Exchange 2010 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 the Hub Transport server to identify messages to which the attorney-client privileged message classification has been applied. If the 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 doesn't meet the requirements, the message may be returned to the sender.

It's important to remember that applying an attorney-client privileged message classification doesn't prevent the recipient from misusing the message by default. This misuse could be any action taken by the recipient that is prohibited by your organization's classification policy, such as printing, forwarding, or copying the message. To prevent these actions, you should apply Information Rights Management (IRM) protection rules to enforce your organizational compliance requirements.

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