Technology has a ubiquitous presence in our society–sometimes a simplifying presence, and sometimes a complicating one. For attorneys, however, involvement with these technologies goes beyond only use of them. It is important for lawyers to understand how technology affects them and their client’s interests so as to better protect them. A perfect example of this is the issue of attorney-client privilege and an attorney’s email communications with their clients. Specifically, what is and is not covered by the pervasive disclaimer that announces the email’s confidential nature that lawyers insert at the bottom of such emails? Although most clients and attorneys may assume that this disclaimer covers any and everything that an email may contain, such is decisively not the case when the client emails their attorney from a work email address. In cases involving a client’s work email and attorney communications, American courts uniformly apply the Fourth Amendment’s “reasonable expectation of privacy” test to rule whether or not the attorney-client privilege extends to certain communications. In determining this, the court considers 1) whether third parties have the right of access to the emails or computer on which the client composed them; 2) whether the corporation maintains a policy that bans personal or other unacceptable use; 3) whether the corporation notified the employee of its use and monitoring policies, or whether the employee was aware of them, and 4) whether the company monitors the employee’s email or computer. If the answer to each query above is affirmative, no attorney-client privilege attaches to the communication in question. To extend upon this issue, courts in California ruled in 2011 that attorney-client privilege does not extend to emails between an attorney and client if the client wrote the emails from a work account. However, case law on electronic privacy at work is always evolving.
Written by Barrett Sharpe
Barrett Sharpe, founder of AdDaddy Networks, is a law firm marketing, attorney advertising, and search engine optimization specialist. He has had his hand in many successful projects, including Lawyer Search and the widely known LegalHub website where attorneys and clients connect. He is available, on a very limited basis, for consulting in a number of fields. Mr Sharpe also operates a seminar, coaching and consulting business for law firms. He accepts communications from interested parties via fax and FedEx exclusively. (phone calls or emails will not be accepted, nor answered.) Barrett Sharpe, 3201 B North Davidson St., Charlotte, NC 28205, fax: (704) 488-0552