This month we continue our examination of the application of existing ethical rules to the green law office. Paperless practice is fast replacing the old system of legal practice with respect to everything from client communication, to legal research, to storage of files. What many lawyers fail to recognize, however, is the same ethical rules that apply to offline legal practice apply online as well. One of the biggest areas of concern regarding electronic communication relates to the use of email, privilege and privacy ó or lack thereof.
Ethical pitfalls, electronic communication
The fact that many lawyers rely almost exclusively on electronic communication does not detract from their responsibility to follow all other ethical rules as well. This is true whether they are communicating with colleagues, family and friends, or clients.
In addition to the concerns about the attorney-client privilege, there are ethical opinions regarding the propriety of spying on the electronic documents of others. The New York State Bar Association Committee on Professional Ethics in Op. 749 (2001) concluded that lawyers may not use technology to surreptitiously trace and examine electronic documents, including email.
Practitioners are cautioned, however, that different states have different rules regarding the propriety of viewing the embedded data in documents.
In addition to examining metadata in documents and email, lawyers should keep up-to-date on the latest cases interpreting the interplay between the use of private email accounts, the use of employer computers and the attorney-client privilege.
Different jurisdictions have come to different conclusions regarding the issue of whether or not emails typed on a company computer are entitled to confidentiality. In Holmes v. Petrovich Development Co. (2011) 191 Cal.App.4th 1047, a client sent emails to her attorney from her workplace computer using her workplace account complaining about being unlawfully treated by her boss. Her employment handbook notified her that all emails sent and received on company equipment were subject to company monitoring. The court held that her attorney-client communications were not privileged.
In affirming the judgment, the Court of Appeal rejected Gina Holmes' contention that her email exchanges with her attorney constituted “confidential communication between client and lawyer” transmitted “by a 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 interests of the client in the consultation.” (Evid. Code § 952.) So far as Holmes was aware, “the company computer was not a means by which to communicate in confidence any information to her attorney. The company’s computer use policy made this clear, and Holmes had no legitimate reason to believe otherwise, regardless of whether the company actually monitored employee e-mail.
"Thus, when, with knowledge of her employer's computer monitoring policy, Holmes used a company computer to e-mail her attorney about an action against her boss, [the company’s namesake], Holmes in effect knowingly disclosed this information to a third party, the company and thus [its namesake], who certainly was not involved in furthering Holmes’s interests in her consultation with her attorney (§ 952) because [the company’s namesake] was the party she eventually sued.” (Id. at 1071.)
“[T]he e-mails sent via company computer under the circumstances of this case were akin to consulting [Holmes'] attorney 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 would be overheard by him.” (Id. at 1051.)
It is not that Holmes waived the privilege; it is that the privilege never attached in the first place because of how she chose to communicate with her attorney. (Ethics Quarterly, 8.1.6 (April, 2011)).
In Stengart v. Loving Care Agency Inc. (2010) 201 N.J. 300, the New Jersey Supreme Court ruled that a company policy of monitoring emails must yield to the protection provided by the attorney-client privilege. The court held that the plaintiff, who had filed an employment discrimination case against her employer, had a reasonable expectation of privacy in the emails she sent to her lawyer through her personal password protected Yahoo account, even though they were sent through the use of a company laptop. (Id. at 308) The trial court had ruled that the plaintiff waived the attorney-client privilege by using a company computer to send the emails.
The Court also ruled that the attorneys for the company violated their state's version of rule 4.4(b) (inadvertent disclosure) by failing to tell the plaintiff’s lawyers that they possessed her privileged emails before reading them. (Id. at 325-36).
Knowledge of the legal and ethical rules that may apply to a paperless law practice, including modern electronic methods of correspondence, will allow you to interact in the virtual world of the Green Law Office effectively as well as ethically. Good luck!