Part 2 of 3
By Justin O’Dell & Leslie O’Neal
In Part 1 of Pandora’s Inbox, counsel for Arcadis employees inadvertently sent an e-mail intended for the employees to Arcadis. Arcadis then failed to notify employee’s counsel of the error, and instead used the privileged information in their counterclaim. Following this activity, the ABA issued two advisory opinions on August 4, 2011 addressing the use of e-mail communications with counsel.
ABA Opinion 11-459 addresses the duty of counsel to protect the confidentiality of e-mail communications with clients. It states in summary:
A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party.
For most litigants, the most common issue involves the sending or receiving of e-mails through a company provided e-mail account or accessing e-mails through a company computer. Most mid to large sized companies are required to monitor and secure employee e-mails for regulatory, compliance or insurance related purposes. Most employees are deemed to consent to the monitoring and review as a condition of employment. In 1999, the ABA concluded that a lawyer does not violate the duty of confidentiality by merely sending a non-encrypted e-mail. ABA Op. 99-413 (1999) (“Protecting the Confidentiality of Unencrypted E-Mail”). The decision was based on the presumption that an e-mail account contained a reasonable expectation of privacy. That expectation is diminished, however, when the account is knowingly monitored by an employer. The opinion notes that the case law thus far indicates a wide disparity as to under what circumstances such e-mails will be considered privileged.
The ABA opinion provides that, until presented with information to the contrary, one should assume that all employer e-mails accounts are monitored. As a result, an ethical obligation arises given a significant risk that the communications will be read by the employer or another third party. The ABA recommends that the attorney warn the client, at a minimum, of the following:
- The client has engaged in, or has indicated an intent to engage in, e-mail communications with counsel;
- The client is employed in a position that would provide access to a workplace device or system;
- Given the circumstances, the employer or a third party has the ability to access the e-mail communications; and
- As far as the lawyer knows, the employer’s internal policy and the jurisdiction’s laws do not clearly protect the privacy of the employee’s personal e-mail communications via a business device or system.
In addition, the ABA concludes that in these circumstances it may also be required that the lawyer specifically refrain from communicating with the client via an employer account and instruct the client to act likewise. Part 3 of Pandora’s Inbox will look at the duty a lawyer has when in receipt of copies of e-mails.