Your Communications with Your Attorney are Always Privileged… Right? Wrong.

Lindsey Brown

Share Post:

Your communications with your attorney are always privileged… right? Wrong.

While the attorney-client privilege is one of the oldest and most sanctified of privileges, it is not without exceptions. Nowadays, when you communicate with a family law attorney, an attorney assisting you with estate planning, or an attorney representing you in a civil case, you are often doing so via email. But you can unintentionally waive the privilege if you communicate with your lawyer from your work email address, or even from a personal email address accessed on your work computer.

Employers who pay for the email domain, and who provided the work computer, are entitled to access those domains and devices, and all communications contained there. This is especially true for companies who have a published policy on how employees should use their work devices and accounts. Courts have held that employees who email with their attorneys from their work email address had no reasonable expectations of privacy to those communications, and the privilege was therefore waived.[1]

If the matter ends in litigation, the Court may consider factors such as:

  1. Does the company maintain a policy banning personal use on company-provided devices?
  2. Does the company monitor the use of the employee’s computer or email?
  3. Do third parties (such as IT companies) have a right of access to the computer or emails?
  4. Did the company notify the employee, or was the employee aware, of the use and monitoring policies.[2]

The Court will use factors such as these to determine if the employee had a reasonable expectation of privacy. If not, the privilege may be deemed waived.

For employees, the safest course of action is to communicate with your attorney via your personal email on your own device, over the phone, or in-person. For employers, it is essential to have a robust policy detailing the expectations of employees when it comes to use of work emails and computers. And for lawyers, it is important to note which email address your clients’ messages come from, as you may have an ethical duty[3] to advise your client about the risks associated with the possible loss of attorney-client privilege in these types of situations. [4]

[1] See Miller v. Zara USA, Inc., 56 N.Y.S.3d 302 (App.Div.Sup.Ct. NY, First Dept. June 6, 2017).

[2] See In re Asia Glob. Crossing, Ltd., 322 B.R. 247, 257 (Bankr. S.D.N.Y. 2005).

[3] Rule 1.6(c) – “[a] lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”

[4] ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 11-459: Duty to Protect the Confidentiality of E-mail Communications with One’s Client, www.americanbar.org/content/ dam/aba/administrative/professional_ responsibility/11_459_nm_formal_opinion. authcheckdam.pdf.

ABOUT THE AUTHOR

PARTNER

Lindsey is a litigation partner and mom to her one-and-a-half-year-old daughter. Lindsey is proud to work at Milgrom & Daskam, where being a parent and an attorney is celebrated and encouraged. Milgrom & Daskam works to support its working parents by fostering dialogue and understanding.

More Articles

Employment Law

Colorado’s FAMLI Act

In January 2024, the Colorado Paid Family And Medical Insurance (“FAMLI”) Act went into effect. It was approved by voters in 2020 and provides for up to 12 weeks of paid leave for Colorado employees who qualify. FAMLI benefits apply to those seeking parental leave, medical leave for yourself, medical leave to care for a family member, military family leave, and leave for those who have experienced domestic violence.

Read More »
Work-Life Balance

A D-Day Wake Up Call

Travel and reflection, particularly when it takes us out of our comfort zone, strengthens our ability to empathize with others, improves our self-awareness and helps us better understand our place in the world; both as humans and as lawyers. We return to our roles more informed and better able to connect with our community and serve our clients in an ever more challenging world.

Read More »
Business & Corporate Law

Navigating the SBA’s Collection Efforts on COVID-19 Loans

During the height of the COVID-19 pandemic, the Small Business Administration (SBA) launched various loan programs, such as the Paycheck Protection Program (PPP) and the Economic Injury Disaster Loan (EIDL) program, to support businesses grappling with unprecedented economic challenges. These programs were lifelines for many, providing essential funds to keep businesses afloat. However, as we move forward, the SBA has started to collect on these loans, leading to new challenges and questions for borrowers.

Read More »