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Can the Attorney-Client Privilege Survive the E-Mail Setting?

By IBLS Editor

Our ancestors used to say that communications between one's doctor and attorney were sacred; that means, they were secret and well respected.  This thinking might have been the outset of  the attorney-client privilege.  Then, it comes the Internet and fast communication means such as e-mails and one may ask whether this privilege can survive this technological era.  As most legal issues involving the Internet, whether a party can claim attorney-client privilege on e-mail communications depends on the specific facts of the case and the jurisdiction were the parties are located.

Indeed, the American Bar Association (ABA) Model Rules of Professional Conduct set the basic rules governing the attorney-client relationship, including confidentiality.  Yet, state bar associations and state laws may expand the rules governing confidentiality and the attorney-client relationship. For this reason, exercising the attorney-client privilege may vary within the United States; although the facts of the case weigh more when comparing U.S. decisions on this issue.        

For instance, under Massachusetts law, the party asserting attorney-client privilege must prove that (1) there is an attorney-client relationship; (2) that the communications were received during the course of the client's search for legal advice from his attorney acting in his or her capacity as such; (3) that the communications were made in confidence; and (4) that the privilege to these communications was not waived.  Also, communication between the attorney and the client is not confidential, and therefore not protected by the attorney-client privilege, if it is conducted in front of a third party that is not an agent of the attorney or client; and if despite being a private communication, the client expected that the information communicated was going to be conveyed to others, or that given the circumstances of the communication, it was expected to be overheard.   Hence, there is no waiver of the attorney-client privilege if the communication is inadvertently overheard. 

As in any other state, under Massachusetts law, a party asserting the attorney-client privilege holds the burden of proof.  The Massachusetts case of Evans in a good example of a state application of the attorney-client privilege to e-mail communications (Nat'l Econ. Research Assocs. v. Evans, 21 Mass. L. Rep. 337  (Sup. Ct. Mass. 2006)).

In Evans, the plaintiff was an economic consulting firm (the company) and the defendant was an employee of this firm (employee). Before leaving the company, the employee consulted with his attorney some legal matters regarding his employment with the company. Most of these communications were conducted through e-mail using the company's laptop and employee's personal e-mail account. No attorney-client communication was held using employee's company e-mail account. The employee did not intend to save copy of these e-mails in the laptop but e-mails are copied via "screen shots" in a temporary Internet file in the computer's hard drive.  Retrieving these e-mails, though, require substantial computer forensic expertise; e-mails saved by screen shots are not easily accessible to any user.  The company did not have an internal policy regarding confidentiality of e-mails in personal accounts.  Employees were not warned of the possibility of their communications being reviewed by forensic experts. Although, the company's manual did state that e-mail communications in the company's computers could be monitored. Before leaving the company and returning the company's laptop, the employee deleted his files and ran a "disk defragmenter."  A disk defragmenter is deemed to delete all computer files without being able to recover them.  The company ordered forensic analysis of the laptop and discovered the employee's attorney-client e-mails.  On a labor dispute, the company requested the court to compel discovery of these e-mails and the employee claimed attorney-client privilege.

The court ruled for the employee.  The court held that the employee did not reasonable expect that his communications with his attorney could have been "overheard" by the company after he deleted the computer files and performed a disk fragmentation. The employee did not waive his attorney-client privilege because he reasonably expected his communication with his attorney to be privileged; the employee used his personal e-mail, instead of his company's e-mail account and the company did not have any manual warning stating that personal e-mails could also be monitored. "If an employer wishes to read an employee's attorney-client communications unintentionally stored in a temporary file on a company-owned computer that were made via a private, password-protected e-mail account accessed through the Internet, not the company's Intranet, the employer must plainly communicate to the employee that: (1) all such e-mails are stored on the hard disk of the company's computer in a "screen shot" temporary file; and (2) the company expressly reserves the right to retrieve those temporary files and read them. Only after receiving such clear guidance can employees fairly be expected to understand that their reasonable expectation in the privacy of these attorney-client communications has been compromised by the employer," the court held.

 

Full post as published by IBLS Internet Law Blog on February 09, 2009 (boomark / email).