Many attorneys use their work email for personal purposes, now and then. So do many clients. Where individuals use work email and computers to communicate with their personal lawyers, there is a risk that those attorney-client communications may not be privileged — particularly when the employee is in a dispute with the employer who has provided the employee with the computer and internet connection in the first place.
The Delaware Court of Chancery recently became the latest court to reject a privilege claim in In re Information Management Services. There, shareholders owning 50% of IMS stock accused three senior officers of breach of their fiduciary duties. The officers consulted their personal counsel using their work email accounts. When the shareholders sought production, the officers claimed privilege. But the IMS Policy Manual warned employees that IMS had unrestricted access to communications sent using its computers and that personal use of those computers should not be considered private. Confidentiality of the communication is essential to claim privilege, and the court found that the officers had no reasonable expectation of confidentiality, and had therefore waived any privilege as to these communications.
This issue can arise even when the worker uses an external, password-protected email account, but accesses it through a work computer, which may save back-ups of work done on the computer. That was the fact pattern in Stengart v. Loving Care Agency. There the privilege was upheld, based on a factual analysis of employee expectations in the context of the employer’s policy on computer use as expressed in their employee policies. However, two courts in neighboring New York reached a different conclusion, one with fairly similar facts.
In light of the conflicting authority and detailed factual distinctions, it is highly desirable to advise individual clients not to communicate (at least not on anything sensitive) with outside lawyers using their work computers. When advising corporate clients about matters involving company personnel, it is equally important to be aware of the developing law in this area.
In 1929, so the story goes, Secretary of State Henry Stimson (pictured below) shut down the State Department’s code-breaking department, purportedly remarking that “Gentlemen don’t read each other’s mail.” As noted in one biography: “He later reversed this attitude.” Careful lawyers and their individual clients — both ladies and gentlemen — need to be well aware of Stimson’s “reversed attitude” these days, and behave accordingly.