Florida Estate Planning Lawyer Blog

This is the third part to a series on Protecting the Company's Privilege and the dangers of Email. Click here if you missed Part 1 and Part 2. Many Jacksonville Business Lawyers tell their clients that email can be very dangerous in the event of litigation. One should always be careful before pressing the send button.

Some of the things you should implement in regards to email are:

1) Provide training to employees teach them what the proper steps are to prevent inadvertent disclosures, spoliation, and other risks from occurring.

2) Always separate business advise from legal advise, use lead ins to make it clear that what is being provided is legal advise.

3) Indicate in the communications when the communication is for legal purposes or in anticipation of litigation.

4) Limit the distribution of any disclosure to avoid waiver of privileges.

5) Teach and train that any disclosure, even an unintended one, can be a waiver of the privilege.

6) Create, implement, and audit your firms document retention policy.

If you have question on your Document retention policy or how your firm is using email on an internal and external basis, be sure to have a Florida Business Lawyer or Attorney review and audit your procedures.

This is the second part to a series on Protecting the Company's Privilege. If you missed Part 1 it can be found here. Many Jacksonville Business Lawyers tell their clients that Blackberry devices are invitations for disaster because clients have their guard down. In the past people communicated with a short phone call, in a hallway conversation, at the water cooler. Today in house council and employees often communicate with text messages and emails. Often they are giving business and legal advise to employees. Sometimes both business and legal advise is given in the same conversation.

Only legal advise is privileged and the privilege can be lost if business advise is intermingled with the legal advise. This privilege only protects communications within the United States. In house counsel should be cautious when communicating with employees or offices in other countries. Some countries do not recognize a privilege for in-house counsel.

Some countries like France and Switzerland recognize no privilege at all for in-house counsel and Japan is in between France and the United States.

How can in-house counsel protect their emails?

• Be conscious of when you are giving legal and business advise. Sometimes you may want to send two emails.
• When sending out legal advise make sure its clear that it is legal advise. Start your emails with "You have asked for my legal advise on this issue". Teach your staff not to mass forward your messages, if the message is forwarded to one person to many, the privilege can be lost.
• Educate your staff that email is not destroyed by simply pressing the delete key. Blackberry devices create inadvertent documentation in situations where clients have their guard down. Don't send an email that you would not like made public.
• Selectively use Privileged & Confidential" notations on e-mail communications. This will help in the event you have to argue the meaning in front of a judge.

Continued in Part 3

So you have been sued, can you remember what you put in that email? Do they still have a copy? Did they forward it to anyone else? Email is dangerous in corporate litigation, to find out some of the risks read this and the next few articles on Protecting the Company's Privilege.

Never write if you can speak,
Never speak if you can nod,
Never nod if you can wink

- Attributed to the 19th century Boston political boss Martin Lomasney

One of the biggest risks with email is the loss of Attorney-Client Privilege. Generally this privilege protects communications that are sent between a client and an attorney from disclosure to third parties. Some jurisdictions only protect client to attorney conversations and those attorney conversations which are in response to a clients question. Therefore attorneys should structure their emails as responses to clients questions to provide the greatest chance for protection from disclosure.

Sometimes when email is from an attorney to a client and the communications in anticipation of litigation, the conversation can be protected under the work product doctrine. In order for this protection to apply the conversation must:

be between a lawyer and a client (person or entity);
be for the purpose of obtaining legal advice;
be to a lawyer acting in their capacity as a lawyer; and
be kept in confidence.

If any condition is not kept, the privilege is waived. With email, the condition of the conversation being kept in confidence is the one that is waived the most often. If an email is forwarded to an outside party, or someone who does not need to know the privilege can be waived.

Continued in Part 2

As a Jacksonville Business Lawyer, I often run up against cases which involve Tortious Interference with an Advantageous Right along with Claims for Beach of a Florida non-compete agreement and Tortious Interference with a Contractual Relationship. The elements of this cause of action are

1) Plaintiff has a business relationship, not necessarily evidenced by an enforceable contract;
2) Defendant's knowledge of the relationship;
3) Defendant's intentional and unjustifiably interfered with the relationship; and
4) Plaintiff suffered damages .

Tortious interference with a contract is virtually identical to the elements of a claim for tortious interference with a business relationship.

There are many defenses to Tortious Interference with an Advantageous Right. They include

1) Affirmative defenses
2) Statute of limitations - four years
3) Defendant is not liable where she did not "intentionally" interfere with plaintiff's business relationship.
4) Plaintiffs cannot establish a tortious interference claim by alleging that defendant interfered with an amorphous class of customers, but rather must establish the existence of a business relationship with "identifiable customers".
5) When the contract provision expressly reserves the right of interference.
6) Agent that gives, on request by his or her principal "honest advise" in his or her principal's best interest.
7) Plaintiff cant bring action against party of the contract at issue.
8 )Privileged or justified conduct does not give rise to Tortious interference claim.
9) Defendant acting to protect her own economic or financial interest is not liavle for tortious interference.
10) Plaintiff cannot premise claim on alleged interference with a contract that is terminable at will provided that interference is lawful competition.
11) Defendant's settlement of a lawsuit that adversely affects plaintiff's business interest does not give rise to Tortious interference claim.

If you feel that an employee has breached their Florida Non-Compete Agreement or has interfered with a contract between you and a client, you should discuss the facts and circumstances with a Florida Business Lawyer.

As a Jacksonville Business Lawyer, I often run up against cases which involved Tortious Interference with a Contractual Right along with Claims for Beach of a Florida non-compete agreement. The elements of this cause of action are

1) The existence of contract to which plaintiff is a party;
2) Defendant's knowledge of the contract;
3) Defendant's intentional procurement of the contract's breach;
4) The absence of justification or privilege; and
5) Plaintiff suffered damages resulting from the breach.

Tortious interference with a contract is virtually identical to the elements of a claim for tortious interference with a business relationship.

There are many defenses to Tortious Interference with a Contractual Right. They include

1) Affirmative defenses
2) Statute of limitations - four years
3) Defendant is not liable where she did not "intentionally" interfere with plaintiff's business relationship.
4) Acts occurring during a judicial proceeding are absolutely privileged and cannot give rise to tortious interference claims.
5) When the contract provision expressly reserves the right of interference.
6) Agent that gives, on request by his or her principal "honest advise" in his or her principal's best interest.
7) Plaintiff cant bring action against party of the contract at issue.
8 )Privileged or justified conduct does not give rise to Tortious interference claim.
9) Defendant acting to protect her own economic or financial interest is not liavle for tortious interference.
10) Plaintiff cannot premise claim on alleged interference with a contract that is terminable at will provided that interference is lawful competition.
11) Defendant's settlement of a lawsuit that adversely affects plaintiff's business interest does not give rise to Tortious interference claim.

If you feel that an employee has breached their Florida Non-Compete Agreement or has interfered with a contract between you and a client, you should discuss the facts and circumstances with a Florida Business Lawyer.