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Attorney-Client Privilege in the Workplace

Posted on Jul 22, 2009

On April 21, 2009, I posted an article about an unpublished New Jersey trial court opinion in the case of Stengart v. Loving Care Agency, Inc., in which the judge held that the attorney-client privilege can be waived not only for emails sent using the employer's email program and computers, but also for emails sent through a web-based email program while using the employer's computer.  Apparently the employee had been using a personal webmail account with Yahoo! to send emails to her lawyer using her company laptop to discuss her hostile work environment claim, which she filed following her departure from the company.  The advice I gave at that time was that if you need to communicate with your lawyer during the work day, you should either bring your own computer to work or have a separate mobile device/cell phone for personal e-mail.

Fortunately, the Appellate Court has weighed in and reversed the trial court ruling.  In effect, they say that the attorney client privilege and the employee's right to privacy trump an employer's computer usage policy.  It said, for example:

"a computer in this setting constitutes little more than a file cabinet for personal communications.  Property rights are no less offended when an employer examines documents stored on a computer as when an employer rifles through a folder containing an employee's private papers or reaches in and examines the contents of an employee's pockets; indeed, even when a legitimate business purpose could support such a search, we can envision no valid precept of property law that would convert the employer's interest in determining what is in those locations with a right to own the contents of the employee's folder of private papers or the contents of his pocket. As a result, we conclude a breach of a company policy with regard to the use of its computers does not justify the company's claim of ownership to personal communications and information accessible therefrom or contained therein."

Great stuff!  Certainly a caution to employers that policy memos and employee handbooks cannot create rights for them that unduly invade the privacy of their employees, let alone violate the privileged communications they may have with their lawyers.  As for the employer's lawyers in this case, they did not escape unscathed.  The court took them to task under New Jersey ethics rules as to whether they should have read any of the information provided to them by their client.  Wow!

My advice, however, remains the same.  Employees should continue to be circumspect regarding personal use of company equipment during the work day and on company property.    If this case has shown us anything, it is that the law is changeable, and who knows what the state Supreme Court would say if they took an appeal of this decision.  However, it is a refreshing ruling from our courts.