Well, we have written about protecting the attorney-client privilege and about safe emailing tips when emailing your attorney. Although we thought we had it pretty well covered, a recent decision from a California appellate has given us something more to think about.
We read a number of legal blogs to keep up-to-date with emerging legal issues. In the course of our reading, we came across a California case, Holmes v. Petrovich Development Company. In Holmes, the plaintiff sued her employer for sexual harassment, retaliation, wrongful termination, violation of the right to privacy, and intentional infliction of emotional distress. At trial, she lost on all counts.
On appeal, Holmes claimed that the trial judge erred when the judge ruled that emails sent by Holmes to her attorney on her work computer were not protected by the attorney-client privilege. At trial, the judge ordered that these communications could be disclosed during discovery and introduced at trial to show that “Holmes did not suffer severe emotional distress, was only frustrated and annoyed, and filed the action at the urging of her attorney.”
The appellate court affirmed the trial court’s decision. The court noted that the company had a written policy that informed employees that computers were not to be used for personal matters, that emails could be monitored to ensure that employees complied with the policy, and that employees should not expect any privacy in the use of their computers. By communicating with her attorney under these circumstances and pursuant to these known rules, the court analogized Holmes’ actions to “consulting her lawyer in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him.”
The court referred to a New Jersey case, Stengart v. Loving Care Agency. In that case, an employee used a company laptop to send emails to his attorney using a web-based email account, not his company account. The emails also included a disclaimer, marking the emails as “attorney-client privileged.” The New Jersey court found those communications were protected by the attorney-client privilege, under those facts.
Email is a great communications tool. Unfortunately, it is rife with potential issues. Remember that your company computer is subject to be monitored by your employer. Both of these cases involved lawsuits by employees against their former employers. In those situations, using a company computer and company email account to communicate with your lawyer may act as a waiver of the attorney-client privilege on those issues discussed in the emails.
I would expect that the rationale used in these decisions can be expanded to other situations, so regardless of your legal situation, you risk disclosure of your otherwise private attorney-client communications unless you take proper precautions. Have your experienced attorney review your company’s email policy, your homeowners association’s email policy, or your particular situation to make sure you protect your private correspondence with your attorney.
Tarley Robinson, PLC, Attorneys and Counsellors at Law
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