Email – Whose Eyes Can Pry?
Daniel J. Siegel, Esq. on 2/9/2011
About The Author
Law Offices of Daniel J. Siegel, LLC
… an attorney-client communication “does not lose its privileged character for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication.” (Evid. Code, § 917, subd. (b).) However, the e-mails sent via company computer under the circumstances of this case were akin to 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 by him. By using the company’s computer to communicate with her lawyer, knowing the communications violated company computer policy and could be discovered by her employer due to company monitoring of e-mail usage, Holmes did not communicate “in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted.” (Evid. Code, § 952.) Consequently, the communications were not privileged.The California court distinguished its decision from Stengart, noting that unlike Holmes, plaintiff Stengart (1) used a personal Web-based email account that was not clearly covered by the company’s policy, and (2) “the e-mails contained a standard hallmark warning that the communications were personal, confidential, attorney-client communications.” So where do these cases leave attorneys, employees and clients? Although no Pennsylvania courts have chimed in on the discussion, the answer seems fairly obvious:
- Employers must establish clear policies about email use, although blanket provisions banning personal email use during work hours may not survive judicial scrutiny;
- Employees should, whenever possible, refrain from communicating with their attorneys using an employer-issued computer;
- Employees have no expectation of privacy when using a company-issued email account to communicate with counsel;
- If an employee must communicate with counsel using a company-issued computer, the employee should only do so using a private, non-company-issued email account; and,
- All such communications should contain appropriate disclaimers that they contain information covered by the attorney-client privilege.
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