The attorney-client privilege is the oldest and possibly most important common law privilege in the American legal system. The attorney-client privilege protects communications between a client and his or her lawyer, provided the discourse is only between privileged persons and is spoken or written in confidence for the purpose of seeking, obtaining, or providing legal assistance. These limitations, while typically construed in favor of a client, can lead to tricky situations in which courts must determine if the privilege has been waived.
Attorney-client privilege is waived if a party discloses to another person the privileged communication or even allows another person to have any sort of access to such conversations with his or her lawyer. If a court deems the privilege as waived, the opposing party is entitled to discover what was said between the client and the lawyer. Courts will find that the privilege is waived if a person’s expectation of privacy for the communication is not objectively reasonable. Thus, if a party does not reasonably believe that the conversation with his or her attorney is private, then the attorney-client privilege is waived.
A recent major development in matters relating to attorney-client privilege involves workplace emails. Generally, discourse between an attorney and client is privileged across any media (e.g., telephone, text message, email), but a client interacting with an attorney about personal legal matters over a workplace email account can be problematic because employers routinely have access to these accounts. The issue with communicating over these email accounts is whether a party reasonably believes that these emails with an attorney are completely private conversations between the two.
Courts look to four key questions when deciding whether emails sent from a client’s employer-issued email account to an attorney are privileged:
- Does the company prohibit the employee from using the email account for personal use?
- Does the company actually monitor the employee email account?
- Do third parties have the right to access the email account?
- Did the employee know about the company’s email monitoring policies?
Essentially, the more “yes” responses to the questions above, the more likely a court is to find that a party did not have an expectation of privacy, thus waiving the privilege and making the attorney-client email exchanges discoverable by the opposing side.
In any event, it is not advisable for a person to communicate with a lawyer about their legal matters over his or her own work email account. It is almost always in a client’s best interest to find a different way to communicate with a lawyer – whether by telephone, in-person, or email using a personal account.
Lawyers at KDDK place a strong emphasis on protecting client confidentiality to ensure the best outcome and experience possible. For more information about this or any related topic, please contact KDDK attorney Brian P. Williams at (812) 423-3183 or bwilliams@KDDK.com, or contact any member of the KDDK Litigation, Trials and Appeals Practice Team.
About the Author
Brian P. Williams, a Co-Managing Partner at Kahn, Dees, Donovan & Kahn, LLP, in Evansville, Indiana, has practiced business litigation, economic development, contract and employment litigation, real estate, estate planning and trust litigation for over 30 years. He brings a keen understanding of people and organizations to his legal practice. Brian is an effective advocate for his clients in the court room or at the mediation table, as well as an effective advocate for a new business seeking to locate in this community. Honed from service as a private practitioner, federal magistrate, industrial foundation officer, federal law clerk, and civic leader, Brian’s analytical skills empower clients to more swiftly reach durable solutions.
(Jordan Heck, a law clerk for KDDK, contributed to this article.)