Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.  

Attorney Client Privilege Does Not Cover Emails Where Client Uses Employer’s Computer and Email System to Communicate with Her Attorney about Legal Issues Against Her Employer

In Holmes v. Petrovich Development Co. (2011) 191 Cal.App.4th 1047, Holmes sued her employer for pregnancy-related discrimination and harassment.  At trial, the employer sought to use emails Holmes sent to her lawyer via a work computer to demonstrate she did not suffer emotional distress. Holmes objected, citing Evidence Code § 917(b) which provides that a communication "does not lose its privileged character for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication."

The Third District Court of Appeal affirmed the trial court’s holding to allow the defendant company to use the emails at issue finding that they were not covered by the attorney client privilege. The Court stated that "the e-mails sent via company computer under the circumstances of this case were akin to consulting her lawyer in her employer's conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him." (Holmes v. Petrovich Development Co., supra, 191 Cal.App.4th at *1.)

The employee handbook, which Plaintiff admitted reading and signing, directs employees that the company's technology resources should be used only for company business, that they are prohibited from sending/receiving personal emails, and that "[e]mployees who use the Company's Technology Resources to create or maintain personal information or messages have no right of privacy with respect to that information or message."  The "Internet and Intranet Usage" policy in the handbook specifically states, "E-mail is not private communication, because others may be able to read or access the message. E-mail may best be regarded as a postcard rather than as a sealed letter...." The handbook spells out further that the company may "inspect all files or messages ... at any time for any reason at its discretion" and that it would periodically monitor its technology resources for compliance with the company's policy. (Id. at *2.)  The Court concluded that the emails at issue were not “confidential communication[s] between client and lawyer,” i.e., that they did not communicate "in confidence by means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted." (Evid. Code, § 952.)

Of course, attorneys have an ethical obligation to keep attorney-client communications confidential. (Bus. & Prof. Code § 6068(e)(1); Rule of Prof. Conduct 3-100, “Confidential Information of a Client.”) Not only should attorneys communicate with clients only by truly confidential means, they should also advise clients on the proper means to communicate with the attorney. In light of the Holmes opinion, it is evident that using employer email accounts to communicate regarding legal matters where the employer is the opposing party is a major no-no. The same reasoning readily applies to use of other employer technology, e.g., office phones, cell phones, fax machines. Attorneys should also consider whether the Holmes Court’s reasoning might apply when employment email is used, and the opposing party is not the employer, at least where the same/similar written policy is in place, i.e., a policy that gives a third person (the employer) ready access to the attorney-client communications. Such communications similarly might not be deemed confidential.

--Andrew A. Servais
**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**