Exceeding Your Expectations

 

Everybody occasionally uses their workplace e-mail for personal communications. Whether it is sending the occasional e-mail to our spouse about tonight's dinner or, confirming who is gathering the kids from soccer practice, we all use our workplace e-mail for personal communications.

However, what happens when you use your workplace e-mail to communicate confidential information with your attorney? Do you enjoy the same confidentiality typically afforded to an attorney-client communication, when the communication is sent from a workplace e-mail? The answer may surprise you.

In the case Holmes v. Petrovich Development, decided on January 13, 2011, a California Court of Appeal, held that e-mails sent by an employee to her attorney using a company computer regarding possible legal action against her employer did not constitute “‘confidential communication between client and lawyer’” within the meaning of Evidence Code section 952.  This is so because the plaintiff employee used the defendant employer's company computer to send the e-mails even though (1) the plaintiff employee had been told of the defendant employer's company policy that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail, (2) the plaintiff employee had been warned that the defendant employer would monitor its computers for compliance with this company policy and thus might “inspect all files and messages . . . at any time,” and (3) the plaintiff employee had been explicitly advised that employees using the defendant employer's computers to create or maintain personal information or messages “have no right of privacy with respect to that information or message.” 

The Court explained, that an attorney-client communication “does not lose its privileged character for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication.”  (Evid. Code, § 917, subd. (b).)  However, the e-mails sent via a company computer under the circumstances of this case were akin to the plaintiff employee consulting with her lawyer in the defendant 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.  By using the defendant employer's computer to communicate with the plaintiff employee's lawyer, knowing the communications violated the defendant employer's company computer policy and could be discovered by the defendant employer due to employer's monitoring of e-mail usage, the plaintiff employee did not communicate “in confidence by means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted.”  (Evid. Code, § 952.)  Consequently, the communications were not privileged.

The Court of Appeal's ruling follows a national trend eviscerating the attorney-client privilege in communications transmitted by employees using company computers, email accounts and cell phones. If you need to communicate with your attorney about a pending or ongoing legal matter, do so on your personal time, using your personal computer or mobile device, and by using your personal email account. Otherwise, you risk losing the confidential nature of your attorney-client communication.

In order to avoid the problems described above, always consult with an employment law attorney about your employment questions. For more information, please contact Jean-Claude Lapuyade, Esq. of the JCL Law Firm at (888) 498-6999 or jlapuyade@jcl-lawfirm.com.

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