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Mar 22, 2009 
Modern technology and traditional notions of attorney-client privilege are clashing in the workplace, and you and your clients could suffer if attorneys are not aware of workplace waiver issues. Adam Losey’s note, Clicking Away Confidentiality: Workplace Waiver of Attorney-Client Privilege, discusses the complexities of attorney-client communication by email.
Computers were once thought of as electronic abacuses and typewriters. With the advent of email, computers evolved into tools of communication. Email is sui generis; it combines the accountability of a pen-and-ink letter with the convenience of a phone call. You can access it cheaply and instantly from any computer in the world with an Internet connection. But in the context of attorney-client communication, the convenience of email can be problematic.
As employee-clients who email counsel from an employer’s computer or email account have discovered over the past few years, email can haunt you. Nearly all employers keep records of employee emails that they sift through for information to use when an employment relationship goes sour. Employers often find incriminating and litigation-fatal communications between an employee and counsel, communications that would be ordinarily entitled to the protections of the attorney-client privilege.
This has left many judges confronting this situation during a discovery dispute in a bind. Traditional, narrow, interpretations of attorney-client privilege point to the conclusion that an employee using an employer’s computer has no objectively reasonable expectation of privacy, and thus privilege would not apply to anything the employee sent to counsel from a workplace computer or email account. Yet, some judges seem viscerally uncomfortable with the idea of technological peeping and employer-played gotcha. Thus, some Judges have refused to admit these types of emails on public policy grounds, while others have stuck to the traditional views on privilege and admitted them. These cases are growing exponentially, and they are wildly unpredictable. See Clicking Away Confidentiality: Workplace Waiver of Attorney-Client Privilege, 60 Fla. L. Rev. 1179 (Dec. 2008).
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Attorney-Client Privilege, confidentiality, eDiscovery, email, employees, employers, Losey, technology, workplace, workplace waiver