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Maintaining E-mail Privacy When Talking to Your Attorney

Posted on Apr 21, 2009

E-mail has been a staple of communication in America for years, especially with households now having at least one computer which, chances are, is a laptop.  It is quick, convenient, and extremely useful.  However, those that use it should be aware of the privacy issues.  Many people do not think about it, and when they do, they tend to consider it like regular snail mail in a sealed envelope only to be opened by the recipient; this is not the case.

First of all, if your e-mail is not encrypted, do not send any message that you would not write on a postcard.  This is because your e-mail can conceivably be read by everyone along the route it will take, including snoops that may be monitoring your wireless connection (if that is not encrypted either).  You should also double check the address before you click "Send" in order to avoid sending it to the wrong person (which can be quite embarrassing or downright harmful to your career).

Second of all, be mindful when using a work e-mail account for personal correspondence.  The courts in many states have held that there is no expectation of privacy for work e-mail accounts or work computers.  This is one reason why I do not correspond with my clients by sending e-mails to their work address; the potential for loss of attorney-client confidentiality is too great.  If you are represented by an attorney, you should also not use your work e-mail to send him or her any messages, for just the same reason.

Those of us in New Jersey also have another concern, and that is the use of personal e-mail accounts on work desktop or laptop PCs.  In the case of Stengart v. Loving Care Agency, Inc., the court wrote in an unpublished opinion that the attorney-client privilege can be waived not only for emails sent using the employer's email program and computers, but also for emails sent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.  Here 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.  In the course of the litigation, the  attorneys for the former employer, using computer forensic experts, found temporary internet files on her company laptop reflecting these emails.  Her attorneys tried to get the e-mails suppressed due to privilege and have the attorneys withdraw from the case (since they could not "unsee" the privileged information).  Unfortunately, the employer had stated quite clearly in an employee handbook, which Ms. Stengart helped to create and disseminate, that all electronic communications using company equipment was not to be considered private.  As a result, the court held that:

"when an employee has knowledge of the employer's electronic communication policy which adequately warns that any and all internet use and communication conducted on the employer's computer is not private to the employee and warns that E-mail and voice mail messages, internet use and communication and computer files are considered part of the company's business and client records, such communications are not protected by such attorney client privilege and are then not to be considered private or personal to any individual employee."

Thus, the employer was able to use this information in the litigation.

One should bear in mind that this was the ruling of one trial court, in an unpublished (i.e. unofficial) opinion, but if other courts in New Jersey (and perhaps throughout the country) follow suit, e-mail privacy in the workplace will erode further.  In addition, attorneys could find themselves quite limited in their ability to communicate with clients during the work day (if they can at all).  Theoretically, this would mean that an employee could not use a company computer, smartphone/BlackBerry, or other mobile Interned device for this type of communication.  The best advice I can give is 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.