Sometimes employees use their employer's e-mail address or computer to contact us. This is understandable, especially for long-term employees who spend most of their waking time at work or using a company-issued computer at home.
The problem is that using an employer's computer or e-mail address to communicate with your attorney might mean these communications are not confidential and may have to be divulged in future litigation.
The Sacred "Attorney-Client Privilege"
The "attorney-client privilege" is sacred in our legal system. This rule of evidence assures that anything you say to your attorney is confidential and nobody can make you or your attorney disclose what was discussed.
There are, of course, narrow exceptions to this rule that communications between an attorney and their client are privileged. The major exception is that any communications also involving a third party are not.
For example, if you and your attorney have a conversation about your case in a crowded elevator and someone overhears it, the conversation is not privileged.
This is because in a crowded elevator you have no reasonable "expectation of privacy", which is a requirement for the attorney-client privilege to apply. If the conversation is not "private", it is not "privileged.
Most of our clients come to us after they have been terminated by their employer, so these issues do not arise, but occasionally an employee is savvy enough to come to us when things start to go wrong at work (which is always a good idea, by the way).
The problem is that if you use a company computer or e-mail address to communicate with your attorney, you could accidentally destroy the attorney-client privilege, much like if you had the same conversation in a crowded elevator.
The reason for this is that most employers have agreements they make their employees sign when they are hired giving their employer permission to monitor their e-mail and other activities on corporate computers.
The theory goes that if you know someone might be monitoring your e-mail, then the e-mail is not private and therefore not privileged. However, the main question here is whether the employee "knows" they might be monitored when they send the e-mail.
California Evidence Code 917(b) states that "electronic communications" do not lose their privilege "sole[ly]" because they are electronic in nature and third parties (e.g. Yahoo, Google) involved in their transmission "may" be able to access them. However, the privilege still might be lost if the e-mails in question are not considered "private".
I am unaware of any California case that deals with this issue directly (please let me know if you are). However, the case of In re: Asia Global Crossing, Ltd, et. al, a New York federal case, is one of the leading opinions on the subject. It also happens to mention Evidence Code 917(b), which was modeled after an identical New York Statute.
The Court in Asia Global Crossing established a number of factors to examine in cases such as these, many of which subsequent courts have used to analyze similar cases. These primarily include whether the company warns its employees that their e-mail or computer use may be monitored and whether the company actually does monitor its employees' use.
Every Situation is Different
Analyses in these situations are extremely fact-intensive. For example, employees are often told by their employers to sign a stack of documents upon hiring and there might be a one-sentence warning buried in the employee handbook stating that e-mail might be monitored.
If there are no further notices to an employee that their employer may monitor them and ten years later that employee sends their attorney an e-mail on their company computer, it is quite possible that the employee has a legitimate expectation of privacy.
However, if an employer regularly reminds its employees that e-mail traffic is monitored, such as a warning that appears every time an employee signs into their computer, it is possible that no legitimate expectation of privacy exists.
We have a bold warning against communicating with us using corporate e-mail or hardware on our "Ask Us a Question" page, but sometimes clients come to us from other sources or simply do not read the warning before submitting their question.
The best way to avoid all of the headache involved in fighting over these sorts of things in litigation is to simply make sure any electronic communication with your attorney is done from home using a personal computer and e-mail account.