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:
- Does the company maintain a policy banning personal use on company-provided devices?
- Does the company monitor the use of the employee’s computer or email?
- Do third parties (such as IT companies) have a right of access to the computer or emails?
- 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]
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[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.
