Keeping Email Communications with your Lawyer Privileged

Keeping Email Communications with your Lawyer Privileged

Everyone is addicted to electronic mail these days, and that is understandable.  Email lets people quickly send off a note, a long letter, a copied link or other text.  The same thing can be copied to multiple people, forwarded, printed, saved.  A lost piece of paper can be a disaster; with an email, just reprint it.

The same conveniences can lead to unintended consequences.  A California court just allowed an employer to collectand use emails sent by an employee through her work account.  The employee surely thought that her own email address gave her some level of privacy, and that the communication would be privileged.  The privilege of confidentiality between an attorney and client privilege can be destroyed if the privacy is not maintained.  Once destroyed, a court may hold that none of the attorney-client communications are privileged, whether they were made by email or otherwise.

Most employers have policies about email use at the office.  Many policies say that email can be used only for business purposes, others allow personal use within reason. The premise behind these policies is that the employer owns the computer, the network, and the email address.  It could be held liable if email is used to perpetrate libel, to harass, or to spread pornography.  Some employer policies are enforced, some don’t seem to be.  The employer retains the ability to read emails, though, and for that reason employees need to be careful.  Beyond the simple idea of keeping a line between one’s personal and work life, communications between an employee and her lawyer can be intercepted if the work email is used.  This is a major threat in an employment dispute.

A New Jersey court recently held that communications sent over an employer’s network were privileged, where the employee had used a personal email account, and the communications were intercepted only because they physically went through employer-owned equipment.  Before the employee won this issue, however, the employer probably read the emails.  The best practice is to use personal email on a personal computer, where the account password is known to no one else.

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