Don’t let your clients send you emails from their employers’ email systems.

Mike Masnick at techdirt has an interesting item about a court decision that “personal emails sent from work computers can still be considered privileged and confidential as an attorney-client communication.” Masnick notes, however, that “[w]e’ve seen plenty of cases where courts have said that an individual has no expectation of privacy on emails sent from work.” And he realizes that the case he’s discussing isn’t the typical employee e-mail case; instead, “it dealt with a federal prosecutor who was fired, and is trying to claim that the firing was for his whistle-blowing. He was trying to access the emails of a US Attorney that he believes will reveal why he was fired. So it wasn’t a case of a company trying to review the email (which is normally the case in these types of lawsuits). And, as such, it makes sense.”

But Masnick has a more interesting question: suppose you e-mail your lawyer from your employer’s e-mail system — is your e-mail protected by the attorney-client privilege from disclosure to your employer? As Masnick wonders:

[W]hat would happen in a lawsuit where it was the employer looking at the material? If a company has a regular program of recording and examining employee email (as many do), then how would the issue be resolved? It would seem that, in such circumstances, it would make a lot less sense to consider the content protected, since the employer is not asking for it, but already has access to it.

I think Masnick is right that your e-mail to your attorney, sent from an e-mail system you know your employer has access to (pursuant to typical employee e-mail policies), is not subject to the attorney-client privilege. And if it’s not protected by the privilege, anyone who has a right to it as relevant evidence in a lawsuit will be able to get it, not merely the author’s employer.

Why? The mere communication between client and lawyer does not establish the existence of an attomey·client relationship ”It is of the essence of the privilege that it is limited to those communications which the client either expressly made confidential or which he could reasonably assume under the circumstances would be understood by the attorney as so intended.” McCormick on Evidence § 91 (4th ed. 1972).

Thus, to establish confidentiality, (1) “[t]he client must intend his communications with his attorney to be confidential, (2) [t]he client’s subjective intention of confidentiality must be reasonable under the circumstances, and (3) the confidentiality must have been subsequently maintained. A subjective expectation of privacy can sometimes be ascertained from the client’s express intentions.” Those intentions must be determined from the circumstances surrounding the communication. William P. Matthews, Encoded Confidences: Electronic Mail the Intemet, and the Attorney-Giant Privilege, 45 U. Kan. L. Rev. 273, 283 (1996).

In short, in considering whether the privilege applies, the courts focus on the precautions taken to preserve confidentiality and the parties’ “reasonable expectation of privacy.” Wendy R. leibowitz, Communication in the E·Mail Era: Deciphering the Risks and Fears, Nat’l LJ., Aug. 4, 1997, at B9.

Lawyers are like priests or doctors — you learn early on that your client’s confidence’s are sacred and that your knowledge of them will go to the grave with you. You learn too that disclosure of those confidences to third parties destroys them. So you don’t discuss client business on elevators, in subways, in taxis, on planes, in restaurants, in coffee shops, on crowded sidewalks . . . . You know a client’s “friend” who is along for moral support but not part of the case should not be present for discussions that should be kept confidential.

In short, you know that if there’s a reasonable likelihood someone else may be in on the communication (whether by listening in or by opening the letter or e-mail), the communication is not confidential. And it doesn’t seem to me that an employee has a reasonable expectation that someone else may not be “in on” the communications he makes via e-mail from work. As the Privacy Rights Clearing House puts it:

Is electronic mail private? What about voice mail?

In most cases, no. If an electronic mail (e-mail) system is used at a company, the employer owns it and is allowed to review its contents. Messages sent within the company as well as those that are sent from your terminal to another company or from another company to you can be subject to monitoring by your employer. This includes web-based email accounts such as Yahoo and Hotmail as well as instant messages. The same holds true for voice mail systems. In general, employees should not assume that these activities are not being monitored and are private. Several workplace privacy court cases have been decided in the employer’s favor. See for example: Bourke v. Nissan, Smyth v. Pillsbury, Shoars v. Epson.

In short, if you’re communicating with your lawyer in the course of what you consider a lawyer-client communication, don’t use your employer’s email system. You might just as well be speaking with your lawyer in the back seat of a taxi with the cabbie listening in.