miscellaneous-type file, the better the
chance that they will not need to be copied on paper by a reviewer.
One final note
Where litigation comes into play or
appears likely, there is an issue of
attorney-client privilege that needs to
be protected. Under our legal system, a
person or company who consults with
an attorney is granted a privilege of confidentiality for those communications.
The privilege belongs to the client and
binds the attorney. Neither the client nor
counsel can be legally forced to divulge
the content of these communications.
The privilege is somewhat fragile.
If the client discusses these privileged
communications with a third party, the
privilege may be gone. (There is a body of
law discussing who has the privilege in a
corporate setting—officers and directors
only? Senior employees?—but that issue
is for another article.)
Waiver of the privilege can come
about by divulging it, as noted above.
Waiver can also arise by inadvertence
and negligence. In litigation, with large
quantities of documents exchanged, it
is not uncommon for an attorney/cli-
ent letter or email to be mixed with
project documents. When this occurs,
is the privilege gone? This is a complex
question, and the courts don’t have a
The point here is to be careful. Emails
between you and your attorney should be
kept in a separate, secured file marked
“Privileged and Confidential.” Within
your organizations, be sensitive to personnel who receive and have access to
copies—limit the distribution.
I T TI G, of Ittig & Ittig, P.C., in Washington, D.C., specializes in construction law. He can be
contacted at 202.387.5508, firstname.lastname@example.org and www.ittig-ittig.com.