Work emails may not be as private as some think

By Tom Gantert

Jackson Legal News

It's something that happens between clients every day in Michigan - a client sends an email to her attorney using her work email thinking it's a protected conversation.

But recent court cases show that email may be subject to disclosure under certain circumstances.

According to New York Law Journal, a U.S. District Judge ruled in March that a clothing executive was not allowed to claim privilege involving information he sent in a work email to his attorney. The judge ruled the clothing executive had "no reasonable expectation of privacy or confidentiality." The employer, the judge stated, had a "clear and long-consistent" policy of limiting an employee's personal use of email and also allowed the employer to monitor workers' emails.

But New York isn't the only state where the debate on privilege with work email ended up in court.

According to the American Bar Association's journal, a California appeals court ruled in 2011 that email was not protected via privilege because the employer had warned that workers' emails were subject to monitoring. However, the New Jersey Supreme Court ruled that emails sent from a personal account on a work computer to a lawyer was protected because those emails were not "clearly covered" in the employer's policy. The emails also contained a warning that the material was confidential attorney communications.

Tim Howlett, an attorney who is chair of the Labor and Employment law section of the State Bar of Michigan said he is not aware of Michigan courts addressing the issue as of yet.

"At this point, those decisions are not binding on Michigan courts," said Jackson Attorney Michael Falahee in an email. "However, decisions of courts in other states can be highly persuasive if the issue ultimately arises in Michigan (and I'm relatively certain it will). Given these decisions in other states, it appears to me that it would be important for Michigan attorneys to obtain personal (non-work-related) email addresses from their clients and to use those personal email addresses for communications that the attorney and client wish to remain privileged. It also bears noting that clients should be instructed to not use their personal email accounts on a work computer. It will be interesting to see how this issue plays out in Michigan."

State Bar of Michigan President Bruce Courtade said none of the out-of-state court opinions are binding on Michigan attorneys.

"So it is tempting to say that Michigan attorneys need not pay attention to them," Courtade said. "However, the basic premise underlying those decisions - that an employee has little or no expectation of any right to privacy in communications utilizing an employer's email accounts - while not new or novel, is one of which every attorney should remind himself or herself and, when necessary or appropriate, convey to his or her clients."

Chelsea Attorney Peter Flintoft said in the cases that went to court, it was the client who contacted the attorney on their work email.

"I do not understand these cases as precedent to threaten disclosure of my messages to my clients," he said. "However, I have always told clients not to send me communications of sensitive materials or subject matter. Sometimes with a municipal client, I will shut down email communications when members of a board start to get too close to Open Meetings Act violations and such. If you let your client fill your computer with discoverable material, there will be a cost."

Jackson Attorney Brad Brelinski agreed that out of state rulings are not binding in Michigan courts.

"But if the issue ever arose in a Michigan case--and there wasn't any Michigan precedent to follow --then judges could look at those rulings for guidance in deciding the issue," he said. "Most employers have policies that make it clear that employees have no expectation of privacy while using company email addresses and equipment. Generally speaking, for a communication to be privileged, it must be confidential."

Brelinski said the privilege is waived when a third-party is present, and if the company reserves the right to monitor company email and strictly prohibits personal emails, then an employee is essentially waiving the privilege by choosing to communicate with an attorney in this way.

"Ultimately, in order to avoid any privilege waiver issue, one in this position should communicate through personal email accounts with their own equipment. You don't want to be a test case for an undecided legal issue."

"I think judges would be inclined to try and protect the attorney-client privilege whenever possible since this right allows clients to speak openly and honestly with their attorney, which is a basic principle of our legal system, but ultimately, the court will look at the law and the facts and make a just decision."

Published: Mon, Mar 25, 2013

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