According to a recent decision by the Michigan Court of Appeals, email privacy emails with your personal attorney may not be confidential and protected by the attorney-client privilege if sent from or received at a work-provided email address. Although the court’s decision does not apply in all cases, if you deal with your personal attorney, you can start using your personal email address. Do not believe that in a lawsuit, an email you submit or receive at work would be shielded from disclosure and use.
Courts have always mandated that a person have a fair expectation that correspondence with his or her attorney would be private and confidential in order to be covered by the attorney-client privilege. An significant factor is the environment in which interactions take place. Generally, in-person interviews, phone calls, and letters are protected; there may not be communications in a public location.
Clients and lawyers often connect by email and text nowadays. It is so normal to send a short email from work to an attorney that most individuals do not care about whether the message is confidential and would be privileged. The issue is that many employers have technology-use policies that limit the personal use of electronic communication systems and allow emails and voicemails to be monitored and checked by the employer. In Michigan, the result may be that the attorney-client privilege may not cover emails sent or received at work from a personal attorney.
The problem considered in Stavale v Stavale by the Michigan Court of Appeals was whether when emails are sent or received by a person via a work-provided email address, there is a fair expectation of privacy. In a divorce case, the wife sent the husband’s employer a subpoena demanding emails that he sent to his personal attorney via an email address given by the employer. In an employee handbook, the employer had a technology-use policy that specified that its electronic communication devices were intended for business use. Employees were instructed not to use the systems for sensitive, confidential or privileged correspondence because the employer had the right to track any use of the system. The policy was clear: when using the employer’s systems to communicate with third parties, workers did not have a fair expectation of privacy.
A norm was established by the Court of Appeals to decide if emails are privileged on employer-provided email systems between workers and their personal attorneys. The court must consider (1) whether the employer has a policy regulating the use of its electronic communication systems and (2) whether the employee has been informed of, or has been aware of, the employer’s information privacy and monitoring policies and practices. The case was sent back to the trial court to determine if the employee’s emails to his divorce attorney should be released in response to the subpoena of his wife, since it was not clear if the employee was told about the policy.
Using your own email address and your own computer or laptop is the best way to protect the confidentiality of communications with your lawyer. Although it might not be as convenient as emailing from work, in a lawsuit it is much safer than getting your correspondence with your lawyer exposed and used against you.