Wednesday, August 31, 2011

Are Emails to Your Attorney Always Covered by Attorney-Client Privilege?

Employees should be aware that emails to their attorneys originating from employer-owned equipment may not be protected by attorney-client privilege even if the employees use their personal email accounts to send such emails. It depends on the corporate policy regarding the use of employer’s equipment and network.

In 2007, a New York court considered the following case: Dr. Scott, an employee of Beth Israel Medical Center, sent emails to his attorney from his work email account about suing his employer. Beth Israel Medical Center had a corporate policy providing that employer’s computer systems should be used for business purposes only, that all information and documents created or transmitted through the employer’s communications and computer systems were company property and that “employees have no personal privacy right in any material created, received, saved or sent using Medical Center communication or computer systems.” Scott v. Beth Israel Med. Ctr., 847 N.Y.S.2d 436 (N.Y. Sup. Ct. 2007). So, since the policy was clear, the NY court held that Dr. Scott had no expectation of privacy and that his emails to his attorney were not privileged.

If the corporate policy is absent, not clearly drafted or if it allows personal use of email, then NY courts may decide that attorney-client privilege applies to emails to personal attorneys sent from office. For example, in In re Asia Global Clossing, Ltd., 322 B.R. 247, 257 (Bankr. S.D.N.Y. 2005), the court held that it was unclear whether there was a corporate policy regarding personal use of company computers, and so the attorney-client privilege was upheld.

Courts are also more likely to uphold the privilege if the employee is working from home and sends an email to his or her attorney from home using the employer laptop. In Curto v. Med. World Commc’ns, Inc., 99 Fair Empl. Prac.Cas (BNA) 2006 WL 1318387 (E.D.N.Y. May 15, 2006), the plaintiff Lara Curto worked from home using company laptop until she was fired. Curto used the laptop to send personal emails and to store documents from her attorney. The court ruled that the attorney-client privilege existed because the laptop was not connected to the office network, the employee attempted to delete emails and documents from her drive prior to returning the computer, and even though the company had a corporate policy prohibiting personal use of company equipment, it did not enforce it.

It is clear that the outcome of these cases varies based on the specific facts at issue. Therefore, it is advisable for the employees to be well familiar with their company policy regarding computer use (usually found in an employee handbook) and to use their personal home computers in the evenings or weekends to communicate with their personal attorneys.

This article is not a legal advice, and was written for general informational purposes only.  If you have questions or comments about the article or are interested in learning more about this topic, feel free to contact its author, Arina Shulga.  Ms. Shulga is the founder of Shulga Law Firm, P.C., a New York-based boutique law firm specializing in advising individual and corporate clients on aspects of business, corporate, securities, and intellectual property law.

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