Warning: Not All E-Mails Are Created Equal
The attorney-client privilege extends to e-mails exchanged between a lawyer and his or her client ... unless you send it from work. A California court of appeal held an e-mail sent from a client to his or her attorney from a work e-mail account is not a privileged or confidential communication. The unanimous decision held that this type of communication was comparable to consulting your lawyer in your “employer’s conference room, in a loud voice, with the door open” where any reasonable person would expect the employer to overhear it.
The court supported its decision with the fact that the employer had a policy that stated that company e-mail accounts should only be used for company business, that e-mails were not private, and that e-mails could be monitored to ensure that employees complied with the policy.
Wired's Threat Level said it best: “Case law on electronic privacy in the workplace is slowly evolving, and not always for the best.”
The courts have come to opposing decisions in regards to communications transmitted using employer-provided devises. In 2010, the U.S. Supreme Court held that text messages on an employer-provided pager are not private. However, the New Jersey Supreme Court held that e-mails sent from a personal e-mail account using a work computer are, in fact, private. The New Jersey decision was based in part on the fact that the company did not have a clear e-mail policy.
This is a difficult issue. Clients are often at work when attorneys are in their offices. If it is expected for employees to take care of personal affairs during work time that do not take up much time -– such as scheduling a doctor’s appointment -- why shouldn’t they be able to send their attorney an e-mail, particularly if they work for a company that blocks personal web-based e-mail?
For now, the take-home message is if you need to communicate via e-mail with your attorney during the work day, do it using your personal smartphone, preferably while hiding in a bathroom stall.
Guest blogger Ruth Carter is a law student in her final semester at Sandra Day O'Connor College of Law at Arizona State University.
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Posted by Laurel Newby on January 19, 2011 at 10:41 AM | Permalink
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