Posted By Cliff Tuttle | January 23, 2011
I’ve preached this sermon before, but its an important one. Don’t use the company’s email to send a communication containing your own private business. That is, unless you don’t care whether the company and everyone else in the world finds out your secret.
This principle was illustrated once again by a case recently decided by a California appellate court called Holmes v. Petrovich Development Company, which has engendered law blog commentaries, including this one in “Inside Privacy”. In this case, an employee was disturbed by the reaction to her announcement that she was going to take maternity leave. So she did the American thing and fired off an email to her lawyer. By and by, the case came up for trial and the employer offered copies of the email exchange between ex-employee and lawyer into evidence. The objection was raised that the communication was subject to attorney-client privilege and thus inadmissible.
When the appellate court ultimately weighed in, it observed that the employee used her employer’s email system. Even though she may have expected the communication was confidential, she didn’t take ordinary precautions to assure it — like using her own email account.
Don’t ever, ever, ever use the company email to communicate private and confidential information. Not only does the company have a right to know what the message contains, but the company’s adversaries in litigation may ultimately have the right to read, use and disseminate this information to the world. I kid you not.
Lawyer privilege must be protected. It can easily be waived. The simple private act of sharing a communication to or from your lawyer with a third party may be enough to waive the privilege. Communicating with your lawyer on an email account that you share with someone else may be enough to waive the lawyer-client privilege. Throwing away a copy of such a communication (unshredded) may be enough to waive the privilege. That is because some courts have held that if you really want something to be private, you won’t leave it lying around where anyone can find it — even in the trash can on the curb. So, if you wish to keep a secret, act like you mean it. Act like you are being followed by spies. Maybe you really are.
By the way, while we are on the subject of lawyer-client privilege, there is something that has been bothering me lately. I’ve seen more than a few emails to the popular “AVVO Answers” feature of the AVVO lawyer ratings board, that disclose facts that would be very valuable to the opposing party in litigation or even confess a crime. Does anybody think that this kind of communication is safe from the eyes of the enemy? Or maybe this question should end with the word “think”.
First, asking a question on AVVO does not entitle the asker to privacy of any kind. There is no lawyer-client privilege because a lawyer-client relationship has not been formed. And if you give enough details to be recognized, well don’t be surprised if you are confronted with a copy of your question while being cross-examined on the witness stand. I hear that this has happened, although not to me.
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