Email Communications with Lawyer, Quirky Question # 18

Quirky Question # 18:

We recently terminated one of our executives.  One of our standard practices when we terminate a senior executive is to check carefully his/her email communications for the preceding twelve months.  When we checked this executive’s email communications, we discovered approximately eight messages to and from a private law firm.  The message subject line was:  “Personal, My Discharge.”

We briefly skimmed these messages and found that they were communications between our former employee and her lawyer regarding her termination and potential claims she could bring against our company.  What can we do with information?  Can we share it with the company’s attorneys?  Was it a mistake for us even to have skimmed these emails?  (Incidentally, we have a “Computer Use Policy,” stating that the company owns all computer equipment and that we reserve the right to review any and all email communications sent on company computers.)

Dorsey’s Analysis:

Like several other Quirky Questions already addressed, your inquiries illustrate further how technological changes are changing the types of questions companies are routinely confronting in the workplace. The fundamental question you pose is whether the communications between your former executive and her private counsel are encompassed by the attorney-client privilege and whether that privilege has been waived by the executive’s method of communication. A subset of that question is whether the messages sent from your former executive should be treated any differently from the messages sent by the attorneys to your former executive.

There is surprisingly little case law on this issue. Clearly, the substance of communications between an individual and his or her lawyer are typically encompassed by the attorney-client privilege. Had your former employee sent a letter to her lawyers seeking guidance on issues relating to her discharge, your company would not have been able to obtain that letter in discovery. If your company had inadvertently received that correspondence because it was misaddressed, you would have been obligated to return it unread. Had your former employee orally communicated the content of the emails to her lawyers, again these communications would be privileged.

The attorney-client privilege, however, requires those claiming its benefits to make reasonable efforts to ensure the confidentiality of the communications. Thus, a letter that had multiple “cc” recipients other than the lawyers to whom it was addressed would not be protected by the attorney-client privilege. Similarly, an oral communication made in the presence of others with whom no privilege existed would be undeserving of protection.

Arguably, given that your former employee used your company’s email system to communicate with her lawyers, the attorney-client privilege has been waived. This is especially true in light of your company’s well-defined (and, I will assume, well publicized) policy, stating that your company reserved the right to monitor all email communications.

There is not much case law on this subject, but there is a relatively recent decision out of New York implicating these same issues. In Scott vs. Beth Israel Medical Center, Inc., No. 602736/04 (New York Supreme Court, New York County; Oct. 17, 2007), the court found that a fired employee who communicated with his private employment law counsel via the company’s email system did not have an “expectation of confidentiality,” and had waived the attorney-client privilege. As in the fact situation you describe, the employer in the Scott case had an email policy that provided for the possibility of employer monitoring, a fact on which the court relied in reaching its decision. Beth Israel’s policy also prohibited the use of the company’s email system for personal reasons. According to the court, Beth Israel’s e-mail policy states that its e-mail system “should be used for business purposes only,” that documents sent over the system are the property of the medical center, that employees have no personal privacy rights in such material, and that the medical center “reserves the right to access and disclose such material at any time without prior notice.”

The court also rejected the notion that the standard disclaimer language at the end of the emails from the law firm to the executive created an expectation of confidentiality. “When client confidences are at risk, [the law firm’s] pro forma notice at the end of the email is insufficient and not a reasonable precaution to protect its clients.” Thus, the attorney-client privilege was not available for the emails either to or from the law firm.

Interestingly, unlike your situation, in the Scott case, the medical center did not review the emails. In that case, the employer notified the former executive’s attorneys that it was in possession of the unread emails and that it believed the attorney-client privilege had been waived. The employee’s law firm then raised this issue with the court, which rejected its claims of privilege.

Although the New York case is useful guidance, I urge you to move cautiously. If a court in your jurisdiction did not follow the approach of the Scott court, you would risk disqualifying your law firm if you shared the emails with your lawyers and they read these communications. Depending on the content of the communications, you might expose yourself to other sanctions as well.

I suggest you take the following steps. First, preserve the emails carefully. Second, do not allow anyone else, including your outside counsel, to read (or even, skim) the emails until you obtain judicial guidance. Third, notify your former employee’s attorneys that you are in possession of the emails and that you will be seeking a judicial determination on whether the attorney-client privilege was waived by your former employee’s use of the company’s email system to communicate with his private counsel. Fourth, file a motion seeking guidance from the court on whether the attorney-client privilege has been waived. In that motion, you will be able to point out all of your company’s policies demonstrating that there was no expectation of privacy or confidentiality with regard to personal emails sent out over your company’s email system. (To the extent that your former executive ever previously articulated a position on the lack of confidentiality associated with your email system, you should be able to exploit that fact.)

By taking these conservative steps, you will maximize your chances of being able to share the email communications with your counsel and use them effectively in the litigation. You also will minimize the risk that a court will find that any improper conduct associated with your review of the communications between your former executive and her counsel.

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