The Ethics of Emails, IMs, and Priviledge
By Ellen Lockwood, ACP, RP
Most employers have a policy
that alerts employees
that the employer may
access employees’ emails, texts, and instant
messages. Recent case law has highlighted
the issues regarding privilege and the use
of emails, texts, and instant messages (IM)
on employer-owned equipment such as
desktop computers, laptops, cell phones,
and smartphones such as those made by
BlackBerry.
If the client is an individual and sends
an email to her attorney from her work
computer, the email may no longer be
privileged as the current case law indicates
courts may view that email as being distributed
to third parties. This determination
may be the made regardless of
whether the client’s employer accessed the
client’s email account or even that specific
email.
An important point is whether the
employees had an expectation of privacy
regarding their email, text, and IM communications,
as well as whether employees
were on notice of a company policy
regarding use and access or monitoring of
employees’ email, text, and/or IM transmissions.
In one of the first cases to address this
issue, a New York bankruptcy court provided
four factors to be considered in
these situations:
Does the company maintain a policy
that bans personal or other objectionable
use of its email system?
Does the company monitor the use
of the employee’s computer or
email?
Do third parties have a right of
access to the computer or emails?
Did the company notify the
employee or was the employee
aware of the use and monitoring
policies? (In re Asia Global Crossing,
Ltd., 322 B.R. 247, 257 (Bankr.
S.D.N.Y. 2005))
The courts do not usually make a distinction
between an email sent using a client’s
employer’s email account or whether the
email was sent using the client’s personal
email account such as Gmail or Yahoo!.
The issue appears to be whether the email,
text, or IM was sent using the employer’s
equipment as well as whether the four factors
listed above, or something similar,
were in place at the time the email, text, or
IM was sent. The company’s notice to
employees of the company’s policies may
be an employee handbook that is periodically
revised where it is incumbent upon
the employee to check for updates, a
notice on company computers to which
an employee must respond by clicking “I
agree” in order to log on, or any other
reasonable means of notif ying employees
of the company’s policies.
If the client is a company, then emails,
texts, and IMs sent from company-owned
equipment to attorneys for the company
(whether in-house or outside counsel) will
likely be considered privileged if the
emails are sent by company employees in
their capacity as employees. But what if a
company employee sends an email to the
company’s counsel using the employee’s
home computer? If the email is sent after
logging in to the company’s email system
which is password protected, then the
email is likely privileged even if the
employee’s personal computer is used by
other non-employees. However, if the
email is sent using the employee’s personal
email account and the computer may be
accessed by third parties, the claim of privilege
for that email may be waived.
Paralegals should consider working
with their attorneys to remind clients of
these issues to hopefully avoid otherwise
privileged emails, texts, and IMs becoming
discoverable. Additionally, paralegals
should be mindful of these issues when
working on personal computer equipment,
cell phones, and smartphones that
may be accessed by others.
Ellen Lockwood, ACP, RP, is the Chair of
the Professional
Ethics Committee
of the Paralegal
Division and
a past President
of the Division.
She is a frequent
speaker on paralegal
ethics and
intellectual property
and the lead author of the Division’s
Paralegal Ethics Handbook published by
West Legalworks. She may be contacted at
ethics@txpd.org.
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