Law Tips: 21st Century Ethics Problems in Email Communications

You could say we are experiencing a technological communications explosion, or perhaps, a marathon. Practicing law requires hyper-vigilance toward these technology-related developments to avoid an ethical stumble. Are you one of those lawyers that find the hurdles of metadata or web-based emails easy to maneuver? Or do you feel as though you may wipe out any minute. No matter your skill level, there are ethical concerns to be considered while keeping up with communications techniques.

Our faculty participants, Kendra Gowdy Gjerdingen and Neil Hayes, are generously sharing  their expertise in navigating the “21st Century Ethics Problems for Family Law.” There are many paths their advice might lead us down. But, after all, Law Tips can’t cover it all, right? For today, we’ll choose one of the significant pitfalls that Ms. Gjerdingen and Mr. Hayes outline – using the employer’s computer for attorney-client email.

Communicating with Clients Using An Employer’s Computer.  

The attorney-client privilege can be lost for e-mail communications between a client and his or her counsel if the email was reviewed or sent through the client’s employer’s computer. In evaluating whether the privilege was waived, four factors are considered.

  1. Does the corporation maintain a policy banning personal or other objectionable use by employees?
  2. Does the company monitor the use of the employee’s computer or email?
  3. Do third parties have a right of access to the computer or emails?
  4. Did the employer notify the employee, or was the employee aware, of the use and monitoring policies?

See, e.g., In re Asia Global Crossing, Ltd, 322 B.R. 247 (Bankr. Ct. S.D.N.Y. 2005) (no waiver): Scott v. Beth Israel Medical Center, Inc., 847 N.Y.S.2d 436, 444 (N.Y.Sup. Ct. 2007) (privilege waived); Curto v. Medical World Communications, Inc., 2006 U.S. Dist. LEXIS 29387   (E.D.N.Y. May 15, 2006 (no waiver because employee worked from home office, laptop not connected to employer’s server, employee had reasonable expectation of privacy in emails sent on her computer).

ABA Formal Opinion 11-459 specifically notes that lawyers should instruct clients to avoid using workplace devices or systems for sensitive or substantive communications between lawyer and client. The opinion provides the duty of a lawyer to advise the client arises as soon as the lawyer knows or reasonably should know that the client is likely to send or receive substantive lawyer-client communications via electronic means “where there is a significant risk” that the communications will be read by a third party. Four considerations tend to establish an ethical duty to warn the client against using a business device or system for electronic communication. (1) Where the client has already communicated by electronic means or has indicated an intention to do so. (2) Where the client is employed in a position that would provide access to a workplace device or system. (3) Given the circumstances, the employer or a third party has the ability to access the email communications. (4) 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 email communications by way of a business device or system.

The opinion calls for the attorney to assume that an employer’s policy allows for access to the employees’ emails sent to or from a workplace device or system and recommends attorneys refrain from sending substantive communications to a client’s workplace email address. The opinion also recommends attorneys caution clients not to send electronic messages to their attorneys through such an account or through a personal account using a workplace computer or system.

The duty to warn the client to discontinue the practice arises when the lawyer becomes aware that the client is receiving personal email on a workplace computer or other device owned or controlled by the employer. The attorney has a duty to stop sending electronic communications, even using the personal email address, if the client continues to do so. This would also cover email and text communication using a smart phone provided by the employer.

Thanks again to our faculty members, Ms. Gjerdingen and Mr. Hayes, for their timely advice. Did this technology pathway bring to mind additional communications pitfalls that might befall a lawyer and their client?  Kendra and Neil raise several more ethical areas that could present concerns within their Family Law Institute presentation; such as, inadvertently disclosed statements, duty to warn and family computers/email addresses.


About our Law Tips faculty contributor:
Kendra Gowdy Gjerdingen is a partner with Mallor Grodner LLP, in Bloomington, Indiana. She received her J.D., cum laude, from William Mitchell College of Law, in 1978, and  M.B.A., with a concentration in Finance, from the Kelley School of Business, Indiana University, in 1990. She is a Certified Family Law Specialist, as certified by the Family Law Certification Board, and a Registered Family Law Mediator.

Cornelius B. “Neil” Hayes, Hayes and Hayes, Fort Wayne, Indiana, has been a Fellow of the American Academy of Matrimonial Lawyers since 1992 and is certified as a Family Law Specialist by the Indiana Family Law Certification Board. He was admitted to the Indiana Bar in 1980,  Indiana Supreme Court and U.S. Federal District Court, Southern District of Indiana; 1981, U.S. Federal District Court, Northern District of Indiana; 1982, U.S. Tax Court; 1986, U.S. Supreme Court.  Mr. Hayes is a Board Member of the Indiana Certifying Organization of the State Bar of Indiana. He has served on the Executive Committee of the Allen County Bar Association – Family Law Section since1990.

About our Law Tips blogger:
Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We plan to utilize her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook page, Twittering and other places her legal experience lends itself.

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