“The e-mails sent via company computer under the circumstances of this case were akin to consulting her lawyer in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him,” the court said. Holmes v. Petrovich Development Co.
If this sounds familiar, it’s because you’ve heard from me before about the perils of client e-mail. So what’s a lawyer to do? The most conservative approach is to admonish clients not to read, download, or access e-mail at work. True, some jurisdictions have drawn a distinction between employees using work vs. personal e-mail accounts, but if the activity is occurring at work while using the employer’s computer, be safe and tell clients it’s a no-no. If nothing else, consider the other ways clients could inadvertently waive the privilege, such as printing the e-mail to a shared printer or discussing it with co-workers (incredibly tempting).
Our “Using E-mail in the Office” practice aid has some useful guidelines for lawyers who regularly use e-mail as a means of communication. If you’re an Oregon lawyer, login to the PLF Web site, select Practice Aids and Forms, then “Client Communication.” While there, consider visiting our collection of engagement letters. Select Practice Aids and Forms, then Engagement Letters. Our “Engagement Letter and Fee Agreement – Alternate” is a longer form engagement letter that includes specific language about e-mail communication:
To reduce cost to you, and to expedite communications, we routinely use unencrypted e-mail. Use of unencrypted e-mail necessarily involves some risk of accidental disclosure of confidences notwithstanding care on our part and yours. Specifically, all our e-mail messages include headers designating the message as “confidential and privileged.” Furthermore, unless you have retained us on a business matter involving your work, we will send e-mail only to your personal e-mail address. Since we endeavor to designate messages as “confidential and privileged,” and avoid e-mailing you at work, we believe a court would recognize our intent to preserve client confidences and hold that the attorney-client privilege applies to our e-mail messages. However, preserving the attorney-client privilege depends in part on you. Some jurisdictions have held that no attorney-client privilege applies when an employee uses a computer at work to access personal e-mail over the employer’s Internet connection. Therefore, we ask that you refrain from reading, downloading, or responding to attorney-client e-mail while at work. Because the attorney-client privilege belongs to the client, we will abide by your instructions and directions respecting communication by e-mail. If you wish to avoid the responsibility of an accidental waiver of the attorney-client privilege, we will communicate via telephone, facsimile, ordinary mail, and Fed Ex, but not via the Internet. Unless we receive instructions from you to the contrary, it is understood we are authorized to use unencrypted e-mail to communicate with you and others about your case.
The Holmes case was particularly egregious. Having sued her employer, Holmes did the unthinkable – she used her work e-mail account to communicate with her lawyer about her employment discrimination claim. This move, coupled with the employer’s standing policy – employee e-mails were not confidential and subject to monitoring – did her in. Most plaintiffs aren’t this careless, but it’s important to remember that your communication is only privileged if it remains between you and your client. Also keep in mind that while sending unencrypted e-mail is generally okay, there are times when it may not be permitted.
Copyright 2011 Beverly Michaelis