Security For All

Everybody knows about the idea of attorney-client privilege. At least in the USA. It’s what keeps lawyers in business and their clients out of jail. In general, any communication between attorney and client is privileged. It’s a secret that no court can compel either party to divulge. Kind of like the privilege between confessor and confessee [priest and sinner in confession]. Only God usually isn’t involved. If the conversation is via telephone? Covered. Postal mail? Ditto. E-mail? Absolutely. Except when it’s not.

You see, privilege hinges on the idea that the conversation is private. Since it’s not possible to “un-hear” a public conversation you don’t get no stinking privilege. Well duh! you might be thinking about now. Of course not. But when a client sends an email directly to an attorney then it’s private. Not so fast there, buckaroo! In this post on the Electronic Discovery Law blog an incident is described wherein that privileged email turns out not to be.

At issue before the court was an email sent from defendant’s counsel to plaintiff’s Vice President and In-House General Counsel regarding a prior conference call attended by [the] defendant, [both counsels] and another lawyer for plaintiff.  At the time of the call, [the] defendant was CEO and Vice-Chairman of the plaintiff corporation.

Evidence was presented that during [the defendant's] employment with plaintiff, [the In-House General Counsel] served as [the defendant's] personal advisor.  Accordingly, [the defendant] claimed the email was a privileged communication between his counsel and his “personal advisor and agent”.  Issues of whether the relationship between [them] was sufficient to establish privilege aside, the court ruled that the email in question “[was] not protected by the attorney-client privilege because [the defendant] had no reasonable expectation of privacy…”

That’s right. Do not pass Go, do not collect $200. This is a point I’ve been trying to drive home since I started blogging lo those many months ago (14 to be exact): when you send and receive email at work you have no reasonable expectation of privacy. Just so there’s no confusion, here are the four factors the court set forth for consideration in determining whether an employee has a reasonable expectation of privacy in computer files or email:

does the corporation maintain a policy banning personal or other objectionable use,

does the company monitor the use of the employee’s computer or email,

do third parties have a right of access to the computer or e-mails, and

did the corporation notify the employee, or was the employee aware, of the use and monitoring policies?

That’s right, you better check the old employee manual to see what your employer’s policy is. Or better yet just pay attention to that disclaimer message that comes up every time you log in to your PC or workstation. You know, that one you always ignore? I willing to bet that it doesn’t say “Use this computer for anything you like. We don’t care and won’t pay any attention to you.“

Bottom line is that you have no reasonable expectation of privacy when you email at work. And therefore no privilege. Not with your lawyer. Not with your priest. Even though God might forgive you in the latter case, a judge certainly will not in the former. You’ve been warned. Now go in peace and sin no more.