Emails, employers, privacy and attorney-client privilege

By now—the year 2011 when email is on the verge of already becoming passé—the explanation that an employer has a presumptive right to examine all emails is a discussion typically held during the time of hire, and the question of confidentiality may be fairly well understood. In essence, “unless company policy specifically states otherwise (and even this is not assured), your employer may listen, watch, and read most of your workplace communications,” according to the Privacy Rights Clearinghouse, a nonprofit consumer information and advocacy organization.

Privacy

According to an oft-quoted 2007 survey by the American Management Association, two-thirds of employers monitor their employees’ website visits to prevent inappropriate surfing. What’s more, 65% use software to block connections to websites deemed off limits for employees.

As noted in a March 17, 2010, article in USA Today, “The computer system is the property of the employer, and the employee has absolutely no reasonable expectations of privacy when using that system. That means employers can track which websites workers visit, the instant messages they send to co-workers, even emails sent through personal accounts—such as Gmail—while employees are logged onto the company network or using company-owned equipment such as a laptop.” The article quotes Lewis Maltby, author of the workplace-rights book Can They Do That?:

A classic mistake is thinking that changing to your personal account buys you any privacy. If you send an email out, it goes through your company server. If they’re monitoring email, the personal email gets monitored just like business email.

Protecting One of Your Oldest Rights: Attorney-Client Privilege

One of the oldest rules of evidence that protects both clients and their attorneys from being compelled to disclose their confidential communications is known as “attorney-client privilege.” Attorney-client privilege was recognized by English common law as long ago as 1577 to protect the confidential nature of attorney-client communications, regardless of whether they took place in public or private. The American colonies adopted this approach and Delaware first codified the privilege in its first constitution in 1776.

Regardless of one’s opinion of an employer’s rights to view an employee’s email, there is more to the story. In the 2006 Law Practice Today article, “The Attorney-Client Privilege and the Amended Federal Discovery Rules,” Carl G. Roberts reminds readers that “the core element of any privilege is the confidential nature of the communication.” What happens with your attorney-client privilege, if you correspond by email with your lawyer, while you are at work? It may have disappeared because you’ve violated confidentiality by making the email available to your employer. “Whether the client is a natural person or a corporation, the attorney-client privilege belongs only to the client and not to the attorney. As a result, clients can prevent attorneys from divulging their secrets, but attorneys have no power to prevent their clients from choosing to waive the privilege and testifying in court, talking to the police, or otherwise sharing confidential attorney-client information with third parties not privy to the confidential discussions.” Your employer!

Christopher Capeli writes a November 7, 2007, article on Law.com,

The ultimate question, then, is whether an employee could reasonably expect his or her email to remain confidential, even though it travels through the employer's computer servers and is saved in the company's electronic files through a routine backup process. To resolve this issue, the courts consider whether the employee has a reasonable expectation of privacy in his or her personal emails and files on the company's system.

The four-factor test applied in a decision of the bankruptcy court in New York City, In re Asia Global Crossing Ltd., is a logical tool to assess the reasonableness of an employee's privacy expectation:

  1. Does the company maintain a policy that bans personal or other objectionable use of its email system?
  2. Does the company monitor the use of the employee's computer or email?
  3. Do third parties 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?

Hence, the clash of confidentiality against convenience in communicating by email may begin with an email to your attorney from your office desktop. Or, they may initiate correspondence with you, because you’ve provided your business card with your company email address. Inadvertent or otherwise, when you enter into communication with your attorney using your company’s email, you may have waived the privilege to confidentiality.

The courts’ rulings are often difficult to parse. With only a cursory reading by this author they seem to rule on attorney-client privilege based on a combination of your prior knowledge and intent. Prior knowledge is understanding that there is no confidentiality when using your employer’s email system. Therefore, (and this is not to be construed as legal guidance) one might say, that once you use your employer’s e-communication system to communicate with your attorney, you very well may be sacrificing your rights to confidentiality.

In one ruling, where an employee knowingly used her company’s computer to communicate with her attorney, and made no effort to delete her emails despite her prior knowledge that the company had a right to look at their employee’s email, the court held that there was a knowing and voluntary disclosure of the email communications at issue that waived any privilege. (See Kaufman v. Sungard Invest. Sys., 2006 WL 1307882 [D.N.J. 2006])

However, according to the article, this doctrine of “no expectation of privacy” has not been sufficient to waive the attorney-client privilege where the court found that an employee made an effort to “delete email communications with her counsel from her corporate-issued laptop computer and to prevent the transfer of the messages into the corporate system.” The court determined in Curto v. Medical World Communications, Inc., 2006 WL 1318387 (S.D.N.Y. May 15, 2006), that her efforts were sufficient to maintain her client-attorney privilege.

The protection of attorney-client privilege is a long-standing right that is made vulnerable by how easily we rely upon email to communicate while at work.

Posted by Frank J. Mendelson | Business Communications, Communications | Comments 0 |
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