In California, a woman who sued her employer may not assert attorney client privilege to emails she sent her attorney from her work email, a California appeals court ruled. The woman claimed that the emails she sent to her attorney from her work email were protected under the attorney client privilege doctrine. The court noted that by sending emails from her work address she was essentially speaking to her attorney in public where anybody could hear.
The court’s ruling turned on the fact that the woman’s employer had warned her that emails sent via her work email account were not confidential. In other words, the employer had the right to look at all email traffic. Under the evidence rules in most jurisdictions, the presence of a third party during attorney client communications will destroy privilege. The court treated the fact that any email might be viewed by the employer as analogous to a third party being present.
In order to ensure that attorney client privilege is maintained, clients need to be careful as to how they transmit information. If clients communicate privileged information via email, make sure that the client is the only one with access to the email account. Even the ability for a spouse or child to use the account may destroy the privilege.
This article was written by Mark S. Demorest, Managing Member of Demorest Law Firm.
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