E-Mail and Attorney-Client Privilege: Cautionary Tales for Employee and Employer
LACBA Update, April 2011
By Clare Pastore, Professor of the Practice of Law, USC Gould School of Law. Pastore is a member of LACBA's Professional Responsibility and Ethics Committee. The opinions expressed are her own.
The collision of old rules with new technologies is hardly a novelty in today’s law practice. Ethics experts, practitioners, and courts have struggled to determine how advertising rules should apply to Web sites or blogs, whether it is permissible to search documents for metadata, and whether judges can “friend” attorneys or litigants on Facebook, among many other questions. Although it is now well settled that attorney-client and other privileges can attach to communications made electronically,1 new wrinkles continue to arise as courts and others wrestle with the application of our oldest privileges to some of our newest technology.
The elements of the attorney-client privilege are familiar. It protects 1) communications, 2) between attorney and client, 3) made in confidence, 4) for the purpose of seeking or providing legal advice.2 The third element has preoccupied courts in the context of employee e-mails. Do employees have a reasonable expectation of privacy in e-mails they send from their work computers or using the employer’s e-mail system? Recent judicial opinions on the topic may shed light on best practices for both attorneys and clients.
In January 2011, the Third Appellate District held in Holmes v. Petrovich that e-mails between former employee Gina Holmes and her attorney regarding possible legal action against her employer were not protected by attorney-client privilege.3 Holmes had used her employer’s company e-mail account with a private password that only she knew and had deleted the e-mails after they were sent.4 However, the company’s handbook, which Holmes acknowledged reading and signing, stated that the company’s computers, e-mail accounts, and other technology should be used only for company business, and that employees were prohibited from sending or receiving personal e-mails. It also warned that “e-mail is not private communication” and that the company might inspect all files or messages at any time and would periodically monitor its technology resources for compliance with the policy.5
Justice Scotland’s opinion likened Holmes’ use of her company e-mail account under these conditions to “consulting her attorney in one of [the employer’s] conference rooms, in a loud voice, with the door open....”6 Therefore, the court held, Holmes could not have had a reasonable expectation of privacy in the e-mails.
The California court distinguished a 2010 decision from New Jersey that had presented similar facts. In Stengart v. Loving Care Agency, Inc., the state supreme court held that e-mails between a former employee and her attorney were protected by the privilege, even though the messages were sent via the employer’s laptop, and even though the company had a written policy stating that the company “reviews and will exercise the right to review...all matters on the company’s media systems at any time” and that e-mail, voicemail, Internet communications, and computer files “are not to be considered private or personal to any individual employee.”7 Reversing the trial court, the high court found that the company’s policy did not address the use of personal e-mail accounts and “creates ambiguity about whether personal e-mail use is company or private property.”8
At one level, the difference between the Holmes and Stengart holdings can perhaps be explained by close analysis of the facts of each case. Gina Holmes used a company computer and company e-mail account. Marina Stengart used a company laptop but a personal, password-protected e-mail account. The California court found the company’s policy clear and unambiguous, while the New Jersey court found an ambiguity. Other courts have likewise held that the clarity of an employer’s policy and whether an employee uses a personal or office e-mail account can be dispositive.9
However, the New Jersey opinion also differs significantly from the Holmes opinion in its concern for the larger issue of protection of important aspects of the legal system in the face of changing technologies. The New Jersey court commented that as technology evolves, “the line separating business from personal activities can easily blur” and that “in the modern workplace...occasional, personal use of the Internet is commonplace.”10 After noting that “our system strives to keep private the very type of conversations that took place here in order to foster probing and honest exchanges,” the high court stated bluntly, “Because of the important public policy concerns underlying the attorney-client privilege, even a more clearly written company manual [banning] all personal computer use...if accessed on a personal, password-protected e-mail account using the company’s computer system—would not be enforceable.”11 In the Fourth Amendment context, the U.S. Supreme Court has likewise noted the danger of courts “elaborating too fully on the...implications of emerging technology before its role in society has become clear....Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.”12
It remains to be seen whether California courts will adopt this type of analysis, sensitive to the actual realities of contemporary workplaces and the policy concerns behind the attorney-client privilege. Plainly, the law on application of privilege to e-mailed communications is far from settled. Until such time as clearer rules emerge, attorneys would be wise to warn clients not to use office e-mail systems, and perhaps not even office computers, for conveying information they wish to keep privileged.
1 See, e.g., Cal. Evid. Code §917 (“Presumption that certain communications are confidential; privileged character of electronic communications”).
2 See Cal. Evid. Code §952; 2 Witkin, Cal. Evidence 4th, §§98 et seq.
3 Holmes v. Petrovich, 191 Cal. App. 4th 1047 (2011).
4 Id. at 1069.
5 Id. at 1068-69.
6 Id. at 1051.
7 Stengart v. Loving Care Agency, Inc., 201 N.J. 300, 310, 990 A. 2d 650, 657 (N.J. 2010).
8 Id. at 315.
9 See, e.g., Smyth v. Pillsbury Co., 914 F. Supp. 97, 100-01 (E.D. Pa. 1996) (no privilege when company e-mail system used); Scott v. Beth Israel Med. Ctr., Inc., 17 Misc. 3d 934, 847 N.Y.S. 2d 436, 441-43 (N.Y. Sup. Ct. 2007) (same); Curto v. Medical World Comm’n, Inc., 2006 WL 1318387 (E.D. N.Y. 2006) (privilege attached to e-mails sent by employee from company computer using personal e-mail account). But see Convertino v. U.S. Dep’t. of Justice, 674 F. Supp. 2d 97, 110 (D.D.C. 2009) (employee has reasonable expectation of privacy in e-mails to attorney even though sent via employer’s e-mail system).
10 Stengart, 201 N.J. at 301.
11 Id. at 325.
12 City of Ontario v. Quon, __ U.S.__, __, 130 S. Ct. 2619, 2629 (2010).