The confidentiality between an attorney and her client is one of the essential features of the client-attorney relationship. The explosion of digital communications – especially email and text messages – has created situations that may undermine attorney-client privilege. Now the American Bar Association has issued a formal opinion stating that attorneys must warn clients that the use of digital communications at work or with work-provided devices can undo attorney-client privilege. (I have posted the ABA opinion at the bottom of this article.)
There are two issues colliding here that can create a problem for a client:
- Attorney-client confidentiality requires that communication be limited to only the attorney and the client. If another person participates in a meeting, phone call, conversation or communication, then the confidentiality is broken.
- While the law often remains vague, in most cases, your employer has a right to see communications you make at work or
using an employer-owned device (e.g., a laptop or smart phone that your employer provides you).
The result: communicating with your attorney from your place of employment at work or through the use of an employer-provided device may violate attorney-client confidentiality and should be avoided.
In a personal injury case, here is the risk that recent court rulings and the ABA opinion raises: Let’s say you have a personal injury case against a property owner for a slip and fall. You communicate with your attorney about the case. Let’s say that an aggressive defense counsel makes a Discovery demand to see your work emails. That attorney will need to establish grounds for the demand, but if the judge upholds that request, not only could the defense counsel see your personal emails, but those emails could include
your communications with your attorney.
Can this happen? Defense counsel has already acquired EZ Pass records in certain cases. Employers have the right to review employee emails and text messages. Given the uncertainty of how the law will be applied, it is not impossible to see a court granting defense counsel the right to obtain communications a plaintiff makes from his or her place of employment. With the
lack of clarity in the law, clients can best protect their privacy and attorney-client privilege by not communicating from the work place or on employer-provided devices.
Let’s look closer at some of the issues here:
Conversations and communications between an attorney and a client have long been considered privileged communications. Therefore, neither the client nor the attorney may be compelled to reveal the communications. The idea of attorney-client privilege dates back to ancient Rome, runs through English law and is well established in U.S. Law. Generally, five criteria apply to the issue of attorney-client privilege:
- The person asserting the privilege must be a client or someone attempting to establish a relationship as a client (so the privilege extends to initial interviews before a client signs a retainer);
- The person with whom the client communicated must be an attorney and acting in the capacity as an attorney at the time of the communication;
- The communication must be between the attorney and client exclusively;
- The communication must be for the purpose of securing a legal opinion, legal services, or assistance in some legal proceeding, and not for the purpose of committing fraud or a crime. The federal government has aggressively pushed to break the seal of confidentiality in money laundering and organized crime cases.
- The privilege may be claimed or waived by the client only.
There have been many cases exploring exceptions to each of these requirements, mostly concerning criminal enterprises.
The issue of monitoring of attorney-client communications affects the exclusivity of that communication and can lead to the loss of the attorney-client confidentiality privilege. If a client has an expectation that the communication is not exclusive and private, then the confidentially privilege can be broken. Some courts have upheld that the presence of a client’s spouse or the presence of a parent involving communications with a client who is a minor may not violate the confidentiality privilege, but this exception would not apply to one’s employer.
Private Communications in the Work Place
The law has not caught up with the age of digital communications. For now, the courts have generally found that employers have a right to monitor employee communications on the job and when using employer-owned or purchased equipment. In a 2007 study of employer monitoring of employee communications, the American Management Association found some facts that may shock many employees:
- 28 percent of employers have fired an employee over an e-mail issue
- 30 percent of employers have fired an employee over Internet use
- 66 percent of employers monitor Internet use
- 45 percent of employers track keystrokes, content and time spent at the keyboard
- 43 percent of companies monitor e-mail. Of those companies, 73% use technology tools to automatically monitor e-mail and 40% assign an individual to manually read and review e-mail
Until we have laws that catch up to the digital age and provide some privacy protection in the work place, employees should assume that their employers monitor their communications. And the courts have generally sided with employers. Last June, in City of Ontario v Quon, the Supreme Court ruled that the employer had a right to monitor text messages sent from an employer-owned device to a private person.
All is not lost for the individual seeking privacy. In March 2010, in the case Stengart v. Loving Care Agency, Inc., the New Jersey Supreme Court ruled that the employer monitoring of the employee’s private emails had gone too far. In this case, the employee used her private Yahoo email account to communicate with her lawyer about a case against her employer. The New Jersey Supreme Court found that “Under the circumstances, Stengart could reasonably expect that e-mail communications with her lawyer through her personal, password-protected, web-based e-mail account would remain private, and that sending and receiving
them using a company laptop did not eliminate the attorney-client privilege that protected them.”
While the New Jersey Supreme Court ruling bolsters employee claims to privacy, most rulings have favored employers. Individuals need to proceed cautiously.
Work-Place Privacy and the Personal Injury Case
I am a personal injury attorney working in New York. What do these developments mean for my clients and for all clients with a personal injury or medical malpractice case? In short, clients should avoid sending private emails and text messages and any
communications with an attorney from work or a device provided by the employer. Those devices could include desktop computers, laptops, cell phones, smart phones or tablets provided by the employer.
If a client does communicate at work or while using an employer-provided device, he or she should assume that the employer will know about the communication. This is particularly important in a case involving the employer, but in more general situations, it means your employer may know about your personal business. It also means that those communications may not be held confidential.
If a client does communicate at work or using an employer-provided device, he or she runs the risk that the defense counsel in a personal injury or medical malpractice case may be able to obtain those communications.
Here is the American Bar Association Opinion:
Formal Opinion 11-459 August 4, 2011
Duty to Protect the Confidentiality of E-mail Communications with One’s Client
A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party.
I hope you found this information helpful. If you or a loved one has been hurt through the negligence of another, you may want to consult an experienced New York personal injury attorney. I would be glad to answer your questions and assist you. The consultation is free. You can call me at 1-800-660-1466 or email me. You can also visit my website or read more on my blog, New
York Law Thoughts.
Carol L. Schlitt
New York Personal Injury Attorney
This material is intended for informational uses only. It is not meant as legal advice. To receive legal advice, you should consult an attorney.
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