Litigation

By: Daniel P. Dwyer

Attorneys hoping to minimize cost and increase efficiency for their clients will often engage in communications or joint defenses with co-defendants. This is often done either informally or with the use of formal joint defense agreements. Although this practice is fairly common, there has been relatively little guidance from the court on issues raised, such as whether and under what circumstances engaging in a joint defense will result in waiver of the attorney client or work product privileges. For more information on concerns with joint defenses, please read the full article. Contact Daniel Dwyer for more information.

By: Anthony T. Verwey

There is an interesting article in the December 8, 2009 Legal Intelligencer regarding a claim that the attorney-client privilege is waived if a client uses an employer’s computer to exchange email with her attorney. It appears that the client was preparing to sue the employer and used her corporate laptop to exchange email with her attorney via a personal, password protected, web based email account. The employer apparently had a policy advising employees that their computer/email use would be monitored and that they had no expectation of privacy in this regard. The trial court found that the privilege did not protect the emails, but the intermediate appellate court reversed. The matter is now pending before the Supreme Court of New Jersey.

In cases where an attorney represents an individual, for example in a DUI, divorce, personal injury action, etc., it may be worth advising a client, preferably in the engagement letter, to refrain from using their employer’s computer for communications with you related to the representation to help ensure that the issue of waiver isn’t given a toehold.

For more information please contact our office.