In an earlier column, “Client confidentiality in a wired (and sometimes wireless) world,” Lawyers USA, November 2008, I discussed how the technology explosion we are living through can put client confidentiality at risk, with possible collateral damage to the attorney-client privilege as well.
With pervasive electronic communications and massive electronic storage of information a part of everyone’s lives, the solution is not to retreat into a hermit’s shell, but to take common sense precautions, such as using encryption devices when especially sensitive data is involved and scrubbing metadata from documents before attaching them to an e-mail.
In August 2011, the American Bar Association issued two formal opinions on the same day, both dealing with electronic lawyer-client communications in a workplace setting. Formal Opinion 11-459 concerns situations in which an employee communicates with his own lawyer, but using the employer’s computer system or e-mail account, or stores a copy of the communication on the employer’s system, even when accessing his own private and password-protected e-mail account.
As the opinion noted, “workplace” communications are no longer confined to the employer’s physical plant or office. Laptops and smart phones are often tied into an overall communications system, and even text messages can wind up residing in an employer’s permanent electronic storage.
Many employers have clearly stated written policies on technology use that allow the employer to monitor and access employee communications of any kind that are made or stored on the employer’s system. Under such policies, employees are deemed to have given consent for the employer to access all of their communications, regardless of whether the employer is doing so in furtherance of the employer’s business.
Where that is the case, it would obviously be foolish for clients to send or receive any electronic communications with their lawyers on employer systems. This is most critical when the client is or may become engaged in a dispute with the employer, but it does not end there. Third parties, including government agents and regulators, may gain access to an employee’s supposedly private communications in the course of broader dealings with the employer.
The good news is that the remedy is just as obvious as the risk. Unless an employee is certain that his own communications are “off the grid,” simply refrain from making electronic communications that are intended to be private, including lawyer-client communications. Thus, the main message of Formal Opinion 11-459 is that lawyers have an obligation to remind clients about the risks of workplace communications, and to take the initiative in learning about the employer’s practices and policies, including whether even private e-mail accounts that are accessed through an employer network are at risk. Simple competence requires nothing less.
What about the employer’s counsel?
Formal Opinion 11-460 deals with the same situation, but from the point of view of the employer’s counsel. If the employee has been insufficiently cautious, and the employer discovers the communications and brings them to the attention of its own counsel, what rights or duties does the lawyer have with respect to those communications?
Ordinarily, Model Rule 4.4(b) and its state counterparts require a lawyer coming into possession of “inadvertently sent” documents to notify the sender, so that the sender may take whatever protective measures are available. Rule 4.4(b) is silent, however, about whether the lawyer must return the documents, with or without making copies, and whether the lawyer is forbidden (or required) to use them to the advantage of his own client.
In the situation under discussion, Opinion 11-460 takes the position that Rule 4.4(b) is completely inapplicable, because the communications themselves were not “inadvertently sent.” In this situation, the lawyer and the client did intend to communicate with each other and properly addressed their respective e-mails or other electronic communications. Of course, other law, including rules of civil procedure or even privacy laws might dictate a different result, and the employee’s lawyer may, for example, be able to obtain a protective order against further disclosure or adverse use.
That aside, however, it would seem that the employer’s counsel not only has no obligation to return the documents or to refrain from examining or using them, but instead has a duty to his client to use them to advance the employer’s cause.
Implications for the attorney-client privilege
When litigation is at hand, the danger that the attorney-client privilege will be lost is even more serious. If the client is deemed to have waived privilege, then the e-mails and texts can be introduced as substantive evidence, free of any hearsay objection. Moreover, it is not only the employer who could reap this harvest. A completely unrelated opponent of the employee can subpoena from the employer’s records any communications that the employee engaged in.
Courts are divided on whether a waiver should be found, but as the technology has developed, and as employee handbooks have become more and more explicit about the lack of any expectation of confidentiality, the trend is indubitably towards finding that the privilege has been waived.
That is how it should be, because if the client has ignored a known risk that communications will not remain confidential, that tends to show indifference. That makes it all the more important for lawyers to educate themselves about the rules governing their clients’ workplace communications, and to advise their clients accordingly.
William Hodes is a solo practitioner who specializes in legal ethics and the law of lawyering. Based in Indianapolis, and Lady Lake, Fla., he is Professor Emeritus of Law at Indiana University, where he taught for 20 years. Hodes’s website is www.hodeslaw.com.