Work Email: Clients Beware

http://ow.ly/777yw

An article by Edward M. Spiro and Judith L. Mogul published by the New York Law Journal and appearing on law.com on the LTN webpage.

This article provides a detailed discussion of the use of emails, and whether attorney-client privilege is protected through certain types of electronic communications.

The article states, "A growing body of case law, and a recent opinion issued by the American Bar Association, make clear that lawyers must help clients assess the risks of sending emails from work systems or devices."  Many precedent cases are cited in the article, and there is narrative about what obligations the various holdings outline.

The article provides a reference, and a link to the opinion for the case, In re Asia Global Crossing, Ltd. 2006 WL 1318387 (E.D.N.Y. May 15, 2006).  As the article states, "In that case, a bankruptcy trustee sought emails sent by the debtor's former employees to their personal attorneys over the debtor's email system -- a request resisted by the former employees on the grounds of attorney-client privilege. In the context of email sent through an employer's computer system, the court reasoned that an employee's expectations of confidentiality (essential for any claim of privilege) are closely linked to his or her expectations of privacy, which in turn depend on office practice and procedure."

The article provides further information on the In re Asia Global case, "The Asia Global court then articulated a four-factor test, which has been widely adopted as the standard for evaluating claims of privilege for emails sent from or through employer devices or systems: 1) Does the employer maintain an email policy banning personal or other objectionable use? (2) Does the employer monitor the use of the employee's computer or email? (3) Do third parties have a right of access to the computer or emails? and (4) Did the employer notify the employee, or was the employee aware, of the use and monitoring policies?"

The article discusses several other cases, and provides links to the opinions.  The cases focus on distinctions between emails sent privately, and those sent through company based servers.  In addition, the cases also focus on the steps taken by the senders, and the efforts made to reasonably maintain an expectation of privacy in the communication.

The article further discusses the ABA advisory statement made in August, 2011 and states, "...the ABA instructs that lawyers who engage in email communication with their clients "must ordinarily warn the client about the risk of sending or receiving [such communications] where there is a significant risk that a third party may gain access.""