The attorney-client privilege is a rule of evidence that protects confidential communications between lawyers and their clients when those communications relate to the clients’ seeking of legal assistance.
To qualify for protection, a communication must be confidential. Most employers have policies stating that employee use of computers may be monitored, meaning that use is not confidential. This is why we advise our employee clients to avoid using their work email accounts or devices to communicate with their attorneys.
Similarly, we advise our employer clients to ensure that they have appropriate policies regarding email and internet privacy and monitoring so that they are able to defend themselves using the emails and other information they find on their own systems.
A recent case involved an employee who filed an employment discrimination case against her former employer, the Department of Veteran Affairs. The court held that she had waived any privilege that might have existed with respect to emails she and her lawyer exchanged using her work email account.
According to the court, the employee had no reasonable expectation of privacy on her work computer because the Department of Veteran Affairs had a number of policies explicitly providing that employees have no privacy when using their work computers:
VA employees do not have a right, nor should they have an expectation of privacy while using any Government office equipment at any time, including accessing the World Wide Web or using E-mail.
To the extent that employees wish that their private activities remain private, they should avoid using any Government office equipment including their computer, the World Wide Web, and Email.
System managers do employ monitoring tools to detect improper use. Electronic communications may be disclosed within the Department to employees who have a need to know in the performance of their duties. VA management officials may access any electronic communications.
All use is considered to constitute understanding and acceptance that there is no reasonable expectation of privacy for any data or transmissions on government network or systems….All VA Internet and Intranet Web sites and pages are actively monitored.
Further, not only did employees have annual training reiterating these policies, but they were required to acknowledge that their activities were not private every time they logged onto a VA computer system.
Because the employee used her work email to communicate with her attorney, those emails were not protected by the attorney-client privilege.
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Whether you are an employee or an employer, please feel free to contact us if you have any questions about the above or any other employment-law issues.
For more information about employment law, see Employment Law (in Plain English)®, co-authored by members of this law firm.
The book is available through Skyhorse Publishing, Amazon, Barnes & Noble, Powell’s Books, and Bookshop (an online bookstore that allows you to support your favorite independently owned bookstore).
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