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.  

How Careful are You and Your Clients in Communicating via Email?
A ways back we looked at various issues in protecting attorney-client communications. (See Ethics Corner, April 3, 27, May 11, and 26, 2009.) A recent case out of New Jersey brings these back to mind. In Stengart v. Loving Care Agency, Inc. (N.J. Sup. Ct. No. A-16-09; decided March 30, 2010 [Opinion Here]), plaintiff communicated with her attorney about a prospective claim against her company via her company’s laptop computer. She did so via a personal, password protected web-based email account, i.e., not her employer’s email. Unbeknownst to her, the laptop would save the emails in a temporary file. In anticipation of litigation, the company’s lawyers had a computer forensics expert retrieve the emails from the laptop and did not inform plaintiff’s counsel of this until months later. The issue before the New Jersey Supreme Court was whether the emails were protected by the attorney-client privilege, and it held that they were. The emails contained the hallmark. “This is a privileged communication” language and were accessible only via a password protected outside email system. Additionally, the employer’s written employment policy regarding the use of company computers expressly allowed “occasional use” for personal email purposes. In light of these circumstances, the plaintiff had both a subjective and objective reasonable expectation of privacy in the emails. In reaching its holding the Court followed similar cases from other states and also noted other cases in which no expectation of privacy was found where the employee communicated via the company’s email system. Although not binding in California, of course, it is instructive as to how a California court might rule, and also instructive on how the opposing attorney should handle the issue. That is, the Court ruled that the retrieving attorney acted in violation of New Jersey’s Rules of Professional Conduct by reading the emails and not notifying opposing counsel. In California, we have a similar rule created by case law. (See Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807.) Until a court in California decides whether the attorney-client privilege attaches to personal, password protected web-based email accessed via company hardware, attorneys and clients would do well not to have the client use company hardware, and attorneys who might wish to access such emails would do well to first seek court guidance along the lines addressed in Rico lest one be found to commit an ethical violation.   
--Luis E. Ventura
**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.**