|Image [cc] Bark
Awhile back I posted on how I thought lawyers using Gmail (or any other free email service like that) constituted a waiving of privilege. My argument was that agreeing to share privileged client communications under “a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive licence” with a third party was on its face – a privilege waiver.
Not everyone agreed with me – the original post had 25 comments. And there were follow up posts in response to a broader conversation. As part of that conversation, someone noted how the NY Bar had issued an ethics opinion on the subject disagreeing with my position. The opinion basically stated email was like mail and thus one has an expectation of privacy.
“We concluded based on developing experience that there is a reasonable expectation that e-mails will be as private as other forms of telecommunication.”
Well … the NY Bar should have asked Google its opinion about expectations of privacy when using Gmail. In a recent court filing, Google made it quite clear what that expectation is:
“Indeed, ‘a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.’”
So I reiterate my claim, only more boldly, leveraging Google’s own statement: If you are a lawyer using Gmail for privileged client communications, they are no longer privileged.