On behalf of David Lindsey, Attorney at Law posted in Computer Crimes on Thursday, October 6, 2011.
Emailing your attorney from a work email address may not be a good idea, according to a recent ethics opinion from the American Bar Association. In a recent interview on NPR, legal ethics expert Diane Karpman outlined the conflicts between attorney-client privilege and an employer’s expectation of access to their employees’ correspondence.
“Clients have an amazing privilege in the United States that anything they tell their lawyer will forever remain confidential. But they cannot be cavalier or casual with that amazing privilege. So, say if you were in Yankee Stadium and you had a talk with your lawyer, and everyone is listening in. Well, then you couldn’t claim privilege because you didn’t have an expectation of confidentiality. And that is the basis of the privileges that you expected, or you believed it would be privileged.”
Using an account owned and managed by an employer leaves the client vulnerable, according to Karpman. The employer may obtain any communication between the client and the attorney done through such an account, and courts have been allowing the communication into evidence. In cases where an employee uses a private account, such as Gmail or Yahoo, but accesses it on company-owned equipment, the courts are carefully assessing various factors, such as who owns the server. Since an employer would not be expected to know an employee’s account information and passwords on a privately held account, that communication would be more difficult to get admitted into evidence.
Karpman recommends caution when communicating with your attorney from your place of work, especially when company policy stipulates that employee emails are not confidential. “With all the warnings that you got, it was almost as if you were consulting with your lawyer in the employee lunchroom over a microphone, in a loud voice, with the door wide open.”