ATTORNEY-client privilege protects the communications between a client and his or her attorney. Anything said between client and attorney, orally or in writing, is kept confidential. The privilege covers a client or someone who is seeking legal advice. The confidentiality is meant to encourage clients to fully disclose information to their attorney so that the attorney is better able to give advice.
Some situations, however, are not covered by the privilege. It does not apply if the client himself or herself publicly disclosed the information, or the information was disclosed to individuals who were not attorneys or clients.
One way for a client to disclose information and waive confidentiality is if the client used the employer’s email system in order to communicate with his or her attorney about their case. This is what happened to Gina Holmes, who sued her employer for sexual harassment and retaliation, among others. Gina had communicated with her attorney regarding the case using her work email. Her employer subsequently obtained copies of these emails from the company’s server and used them as evidence in trial. Holmes’ attorney objected, saying these emails were confidential. The court said they were not.
The court ruled that emails sent by Holmes to her attorney regarding possible legal action against defendants (Holmes’ employer) did not constitute confidential communications. The communications lost their confidential nature because Holmes used defendants’ company computer to send the emails even though she had been told of the following:
1) the company’s computers were to be used only for company business and that employees were prohibited from using them to send or receive personal emails;
2) the company would randomly monitor its computers for compliance with company policy and thus might inspect all files and messages; and
3) that employees using company computers to create or maintain personal information or messages ‘have no right of privacy with respect to that information or message.’
Of course, an attorney-client communication does not lose its privileged character simply because 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. However, sending emails via the company computer was similar to Holmes consulting her lawyer in her employer’s conference room, in a loud voice, with the door open. Any reasonable person would, thus, expect that their discussion of her complaints about her employer would be overheard by the employer.
If Holmes had emailed her attorneys using her home computer, these emails would have been considered privileged communication and, therefore, confidential. However, because she used the company’s computer, Holmes communicated using means that would disclose information to other persons. As a result, her email communications using the company computer were not privileged.
Employees should, therefore, take great care in using their office computers when communicating with their attorneys. Even if emails are deleted, copies may continue to exist in the computer servers or mainframes and an IT person will eventually recover them. When this happens, employees may lose the protection of confidentiality.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum—a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. You can visit his website at www.joesayas law.com or contact his office by telephone at (818) 291-0088.
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