Using Employer’s Email to Communicate with Attorney May Lead to Loss of Attorney-Client Privilege

In an interesting recent case, an employee who had sued her employer claiming discrimination was not entitled to assert the attorney-client privilege with respect to her email communications with her attorney in the litigation because they were sent from her work email account, a California appeals court has ruled.

According to the court, the email was not a protected confidential communication because the employer, the Petrovich Development Co., had warned that employee emails were not confidential and were subject to monitoring. According to the court, “the emails sent via company computer under the circumstances of this case were akin to consulting her lawyer in her employer's conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him,” the court said.

Not all courts have agreed with the California court. Last March, the New Jersey Supreme Court protected emails sent from a personal account on a work computer to a lawyer. The court noted that the emails weren't clearly covered by the employer's policy, and they contained the standard warning that they were confidential attorney communications.

The lesson here is avoid communicating with your attorney while using your employer's email. Employees should be aware that employers can and often do monitor their employee's emails. Some employers even have the capability of monitoring emails sent/received by employees on private email accounts like Yahoo and Hotmail if they access those emails using company computers.