The intersection of technology and the rules of ethics continues to develop. The NC State Bar has proposed a new FEO (2012 Formal Ethics Opinion 5), which deals with the interesting question of the attorney-client privilege of an employee’s emails to her personal lawyer that are on her employer’s email system.
If Your Client Is The Employee
The Opinion contains a caution: If you are a lawyer representing an employee in any matter, whether related to her employment or not, you probably shouldn’t communicate with her at her office email address. The opinion recommends that the lawyer "explore with the client alternative methods of communicating including use of the employee’s personal email system, telephone, and texting. "
If Your Client Is The Employer
If you are a lawyer representing the company, can you access the employee’s emails with her lawyer on the corporate system? Only if you can conclude "confidently" and "in good faith" that any privilege has been waived.
How can you arrive at that "confident" determination? It depends on whether the employee "had a reasonable expectation of privacy in the email communications." That requires taking into account a hodgepodge of factors, including:
whether the employer has a clear, unambiguous policy regarding email usage and monitoring; whether that policy is effectively communicated to employees; whether the policy is adhered to by the employer; whether third parties have access to the employee’s email account on the employer’s system; when/where the communication occurred (at home or the office; during work or leisure hours); and whether the employee took affirmative steps to preserve the privacy of the communication.
Since the opinion recommends that the attorney seeking to view or use the emails "should err on the side of recognizing the privilege whenever an analysis of the facts and case law is inconclusive," it seems that the necessary "confidence" might not often be found.
But let’s say that you are in the rare situation where the employee could not be said to have a "reasonable expectation of privacy" in the emails. Do you have to notify the employee’s personal counsel that you are going to read them? There is a bright line answer here: No. The reason is that the fact that the employer has copies of the emails is confidential client information, which the employer’s attorney may not disclose without his client’s consent or unless an exception to confidentiality (like a need to disclose to comply with the law, a court order, or the rules governing discovery) applies.
Employee’s Personal Email Account
The opinion isn’t really different when it’s a personal email account involved (like a gmail account which the employee accesses at work). The lawyer for the employer can’t advise his client to invade the account by changing the password. I didn’t realize that was possible, but it would violate RPC 1.2(d), which prohibits a lawyer from counseling a client "to engage in criminal or fraudulent conduct," Nor can the lawyer reap the benefit of the client undertaking that action on its own. That would be assisting the client in fraudulent conduct.
But what if you don’t need to change a password to access the account, or you can recover the emails from the employee’s hard drive? No clear answer. Given that the Opinion is fiercely protective of the privilege, I would say you can’t. It says that the privilege "is fundamental to the client-lawyer relationship and the trust that underpins that relationship. As such, the bar must protect the privilege and seek to limit incursions upon the privilege that are not warranted by law."
This isn’t the only foray of the State Bar into the intersection of ethics and email. 2012 FEO 7, proposed at the same time, says that a lawyer sending an email to a lawyer representing an adverse party cannot copy the other lawyer’s client on the email.
The Opinion says that "[c]opying the opposing party on a communication—whether email or conventional mail—with opposing counsel is a communication under Rule 4.2(a) and prohibited unless there is consent. " "Consent" means "express consent from opposing counsel."
The Opinion sets out the same rule even if the opposing client was copied on the email to which the response is being made.
Note that these Opinions are only proposed. The Bar is inviting and accepting comments.
Thanks to my friend Molly Whitlatch for suggesting that I write about 2012 FEO 5.