A recent article in the Law Technology News discussed the growing uncertainty surrounding the privilege protection for unencrypted attorney-client e-mail. The article also mentions other privilege issues surrounding remote storage, smartphone backup, and virtual office function, which increases the number of people who have access to attorney communication and work product.
Communication through the growing channels of technology (Twitter and Facebook) will continue to cause uncertainty until the Courts, State Bars and ABA issue formal opinions on which of these channels are privileged. Because of this uncertainty, attorneys should look to State Bars and the ABA for ethical guidance regarding client communications to ensure they remain privileged and protected. If there is any uncertainty, it is always best to protect your client and your communication - write a letter or pick-up the phone. We know those communications are privileged and protected.