Emailing client’s at their workplace – Your specific duty to give specific advice

Do you routinely advise a client who is employed not to use his/her employer’s email service or company issued smartphone to communicate with you?

If your answer is “no” you can be in trouble. A client who loses the protection of the attorney-client privilege (and your malpractice insurance carrier) may not like it if you did not follow your duty (repeat – duty) to specifically tell your client not to use his/her employer’s email service or company issued smartphone to communicate with you.

Any doubt in your mind about this? Then read Opinion 11-459 Duty to protect the confidentiality of email communications with one’s client, ABA Standing Committee on Ethics and Professional Responsibility (Aug. 4, 2011). To sum the ABA’s opinion up:

Whenever there is significant risk that any third party will have access to the communication then “the lawyer must take reasonable care to protect the confidentiality of the communication by giving appropriately tailored advice to the client.” [Emphasis supplied.]

There it is: an ABA definition of reasonable care that is specific that you “must” tell your client not to use his/her company’s email system (or smartphone) to communicate with you on his/her
personal matter you are handling.

Company employee manuals today commonly state that any email message on the company’s email system, and anything on a company issued cell or smart phone is not private and may be read by the company anytime at its option. Reading an employee’s email or seeing what is in the memory of company-issued smartphones may occur for multiple purposes, including even such mundane items as determining the percentage of time an employee is spending on non-company business. The point is, an employee should assume (but they don’t) that anything on the company’s email system or company-issued phone is not privileged and the company can access it.

If there is a reasonable expectation (and you as a lawyer should have it) that the company can read your client’s communications, his/her communications with you are not privileged. A court is likely to rule that your email to, or email from, your client is discoverable, not only by the employer, but also by your adversary in the lawsuit in which you represent your client.

The ABA’s opinion is grounded in the ABA Model Rules of Professional Conduct which are the direct basis for lawyer conduct codes in every state except California. The opinion says:

“In particular, as soon as practical after a client-lawyer relationship is established, a lawyer typically should instruct the employee-client to avoid using a workplace device or system for sensitive or substantive communications, and perhaps for any attorney-client communication.”

And what about you? Do you send emails to your clients at their company email address, or phone him/her on their company-issued smartphone, even though the litigation on which you are working for
the client is a personal matter? If so, you better stop doing that!