A recent California Court of Appeals decision stated that an employee's e-mail communications with her attorney, sent from a work computer, were not protected by attorney-client privilege. Although Michigan courts have not directly addressed this issue, this recent decision suggests where the law is going – and how to better protect attorney-client communications from unwanted disclosure.
In Holmes v. Petrovich Development Company, LLC, the plaintiff employee e-mailed an attorney through her work e-mail account on a company computer to inquire about pregnancy discrimination in the workplace. The company had a strict computer privacy policy that prohibited employees from sending or receiving personal e-mails on work computers and eliminated an expectation of privacy for any personal e-mails sent through the work computers. Pursuant to this policy, the employer later accessed the employee's e-mails to her attorney and used the e-mails in court proceedings. The employee objected to disclosing the e-mails and claimed attorney-client privilege. The California Court of Appeals found that the employee could not reasonably expect the e-mails to be protected by the attorney-client privilege because of the unambiguous computer privacy policy regarding personal e-mail use.
Numerous other courts throughout the country have also analyzed the attorney-client privilege issue regarding workplace communications. The decisions in these cases varied – some protected attorney client privilege, while others did not. Many of the decisions depended on the clarity of computer privacy policies set forth by the employers involved in each case and further emphasize the importance of the employer's computer privacy policy. What follows is some guidance for determining the likelihood of attorney-client privilege protecting workplace communications.
1. The employer should have an unambiguous and strictly enforced computer privacy policy.
An employer should create a computer privacy policy prohibiting personal use of work computers. The policy should also state that if an employee chooses to use a computer for personal use, the employee has no expectation of privacy and the employee's e-mails are subject to monitoring by the employer. The policy must also be enforced by the employer.
2. The employee should not use a work computer for personal e-mails.
There is no guarantee of workplace privacy, so it is best for the employee to hold any personal communications entirely outside of the workplace. If there is a clear computer privacy policy prohibiting personal use of computers, it is in the employee's best interest to abide by this policy. If there is not a clear computer policy at work or the policy is not strictly enforced, an employee should still not send personal e-mails on a work computer. It is best for employees to use their own electronic devices for personal communication in order to keep the protections of the attorney-client privilege. This concern extends to employer-provided smartphones or Internet devices as well.
3. Attorneys should not communicate with clients through their work e-mails.
Attorneys also carry responsibility for protecting the attorney-client privilege, and should not communicate with the client through the client's work e-mail. The attorney should encourage communication only through personal electronic devices.
The American Bar Association just released an ethics opinion warning attorneys to adequately advise clients to protect the privacy of communications. The opinion also states that third-party client devices, which include public library and hotel computers, can jeopardize the confidentiality of electronic communications between a lawyer and client. Essentially any device that can be accessed by others, including a home computer used when a client is in a matrimonial dispute, can pose an issue.
In sum, courts around the country seem to be headed in the direction of disclosing attorney-client communications when an employee violated the employer's clear computer privacy policy. Therefore, an employer should establish clear guidelines regarding employee e-mails within the workplace – and these policies should be strictly followed by employees in order to avoid unwanted disclosure of attorney-client communications.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
