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A recent decision in New York state court should cause employees to think twice before sending e-mail to counsel from their work accounts. In Scott v. Beth Israel Medical Center, the court held that a fired employee who communicated with his private employment law counsel via the company e-mail system did not have an expectation of confidentiality and, therefore, had waived the attorney-client privilege.
Does your company have an e-mail policy? If so, you should pay careful attention to this decision and its implications on the attorney-client privilege.
In Scott v. Beth Israel Medical Center, the New York state court relied heavily on the policy that governed the use of the company e-mail system. The policy, contained in the employer’s Human Resources Policy and Procedure Manual, prohibited personal use of the company’s e-mail system. It also gave the company permission to access and monitor e-mails sent on the employer’s computers. The policy was a significant factor in the court’s decision because the attorney-client privilege requires reasonable efforts to keep the communications between attorney and client confidential. With such a policy in place, communication to your personal legal counsel over company e-mail cannot be made in confidence.
Although case law on this topic is currently limited, most jurisdictions would probably align with the Scott decision. The Electronic Communications Privacy Act (ECPA) governs the unauthorized access to and disclosure of e-mail. This federal statute, however, provides an exception for employers that allows the review of employee e-mails as long as the company has obtained consent from the employee or provided notice via an employee handbook, policy or similar means. In effect, this carte blanche freedom to access an employee’s emails spoils the required confidentiality for the attorney-privilege.
So, take heed the court’s warning in Scott. Your company’s e-mail policies may allow your “employer to look over your shoulder each time you send an e-mail.”
© 2010 Much Shelist Denenberg Ament & Rubenstein, P.C.
