Sunday, May 3, 2009
This is an interesting and important post from the Lawyerist blog reminding lawyers of the pitfalls of communicating with clients through their private email accounts if clients access those accounts from their work computers.
There has been a growing awareness—and a line of cases—about the risks of sending privileged emails back and forth with clients who are using their employer-provided email accounts. Depending on how diligent the employer is about announcing and reminding its employees of its policies, an employer can successfully decree that anything done on the employer’s computer (including laptops) is subject to review by the employer and carries no expectation of privacy. As noted in a previous post, that can apply to otherwise confidential and privileged emails between an employee and his or her lawyer.
A recent New Jersey state district court decision, Stengart v. Loving Care Agency, Inc. (PDF link), took this principal [sic] one nasty step further. The court said that not only can the privilege be waived for emails sent using the employer’s email program and computers, but it can also be waived for emails sent through a web-based email program while using the employer’s computer. The employee had been emailing her lawyer using a Yahoo! account, which she accessed when using her company laptop. After the employee quit, the company imaged the laptop’s hard drive, and later found temporary internet files reflecting her emails. The court followed the reasoning of a very similar federal district court decision.
If this ruling remains intact and is followed by other courts, attorneys could be significantly curtailed in their ability to communicate with clients during the work day—or at all. Some clients use their work desktop or laptop as their only computer. And if the rule applies to employer computers, I cannot see why it would not apply to Blackberrys and other email-enabled mobile devices provided by the employer. Essentially, to communicate with a lawyer during the work day, an employee would need to either bring his or her own computer to work or have a separate mobile device for their own email account.
I am the scholarship dude.