E-mailing from computers and texting from mobile devices is something you probably do all day long. But when transmitting and receiving messages, many people have a false sense of security. They feel that only the senders or the recipients can read the communications.
However, as some court cases illustrate, the contents of messages can be disclosed. When this happens, the sender and the recipient may find the communications are not protected by the attorney-client privilege.
Some of the issues involved in electronic communications may be obvious to you. Let’s start with two basic rules.
- If you are involved in a legal conflict with your employer, don’t use your work e-mail address or an employer-provided computer or mobile device to communicate with your attorney. It is best to send messages from a personal account using your own personal electronic devices, such as laptops, smart phones and tablet computers. Many employers have clear computer policies that state that employees have no expectation of privacy and messages are subject to monitoring by the employer. Messages sent through the employer’s servers are routinely saved in a backup process.
- Don’t send messages to your attorney from a Wi-Fi setting, such as a coffee shop, or from a library or hotel computer. There is a chance that they could be intercepted by a third party.
One court case illustrates some of the risks involved.
Gina Holmes worked as an executive assistant for a California company. After becoming pregnant and quitting the company, Holmes sued her employer for sexual harassment, retaliation, wrongful termination, violation of the right to privacy and intentional infliction of emotional distress. The charges stemmed from a series of e-mail messages between Holmes and her boss about her pregnancy, which were also forwarded to the company’s in-house attorney and three employees who handled human resources and payroll functions.
Using a company computer, Holmes sent an e-mail message to an attorney specializing in employment law. She detailed her situation, inquired about pregnancy discrimination and forwarded the e-mail messages from her boss to the attorney.
Holmes contended that her attorney-client privilege was violated by permitting the introduction of the e-mail documents at trial and by denying a motion that the documents be returned to her. She believed the messages were private because she used a private password to access the company computer and deleted the messages after they were sent.
The court ruled that e-mails sent by Holmes to her attorney did not constitute confidential communication between a client and lawyer. This was because Holmes used her employer’s computer and had been:
- Told of a policy that “computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail.”
- “Warned that the company would monitor its computers for compliance” with the computer policy and might “inspect all files and messages … at any time.”
- Explicitly advised that employees using company computers to create or maintain personal information or messages “have no right of privacy with respect to that information or message.”
The court emphasized that the attorney-client privilege is not lost “for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation or storage of the electronic communication may have access to the content.”
Instead, the court stated, privilege was lost because the messages were sent via the company computer and “were akin to (Holmes) consulting her lawyer in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard.”
Had Holmes used her home computer to e-mail her attorney, the court stated, the messages “would have been a privileged communication” unless she “allowed others to have access to her e-mails and disclosed their content.” (Holmes v. Petrovich Development Co., LLC, 191 Cal. App. 4th 1047, 2011)
There have been numerous other court cases that have similarly ruled against employees. However, in some cases, employees have been successful in maintaining attorney-client privilege with e-mail messages. For example, Lara Curto worked from home using a company-provided laptop computer. She sent messages and stored documents from her attorney in relation to an EEOC complaint filed against her employer. Although Curto used a company-owned device, she used an outside e-mail service so that her messages would not go through the employer’s mail system.
After Curto was fired, she deleted messages and returned the computer to the company. With the help of a forensic computer consultant, the employer was able to recover and examine documents. A court ruled that the attorney-client privilege did exist because the computer was accessed from home, was not connected to the company network and the employer did not enforce its policy of prohibiting personal use of its equipment. (Curto v. Med. World Communications, Inc., E.D.N.Y., No. 03 CV 6327, 2006),
As you can see, whether or not attorney-client privilege is maintained in e-mails can depend on the specific facts and circumstances of a case. Internet law is still evolving. However, it is generally advisable to use a personal home computer (or mobile device) and a personal e-mail address to communicate with your attorney and to transmit sensitive documents about your employer.
Employers should have a clear e-mail use policy, which is included in their employee handbooks. Staff members should be asked to sign a document stating that they understand the policy.
The Basics of the Attorney-Client Privilege
Confidentiality is the bedrock of the attorney-client relationship. However, this privilege is at risk during the routine transmission of an electronic communication.
– The American Bar Association
The “attorney-client privilege,” dates back to England in the 1500s and is intended to encourage clients to communicate freely when they are seeking legal advice.
The principle of attorney-client confidentiality is based on statutes and professional ethical rules that attorneys follow. It protects both oral and written communications.
In general, the attorney client-privilege allows you to disclose information without fear that the facts will become public or will be used against you. It extends to attorneys as well as legal assistants and paralegal professionals.
Despite its many protections, the attorney-client privilege does have some exceptions. For example, it does not apply if used to commit a crime or fraud.