Tuesday, October 4, 2011

Attorneys' Duties Regarding Employee Emails

According to new ABA opinion letters, and a new article from Corporate Counsel, attorneys in employment law owe a duty to warn employee-clients about email interception. In ABA Opinions Clarify Ethical Obligations in Email interception, Jeff Campolongo addresses this "trending" topic in "employment law circles and blogs." Hey! I run in employment law circles, have an employment law blog... and everyone knows I'm trendy! I better get on this topic.

The gist is this: employees often communicate with their attorneys via email, and sometimes they do this on work-time and/or using work email accounts, computers, smartphones, or other devices. One issue arises on the employer's side: If the employer's attorney acquires these emails, does he or she have a duty to notify the employee or the employee's counsel of the interception? This is addressed in ABA Formal Opinion 11-460, which concludes:
When an employer’s lawyer receives copies of an employee’s private communications with counsel, which the employer located in the employee’s business e-mail file or on the employee’s workplace computer or other device, neither Rule 4.4(b) nor any other Rule requires the employer’s lawyer to notify opposing counsel of the receipt of the communications. However, court decisions, civil procedure rules, or other law may impose such a notification duty, which a lawyer may then be subject to discipline for violating.
Good news for employer-side attorneys! But, what about the employee's attorney? A separate opinion, ABA Formal Opinion 11-459 concludes:
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.
Fair warning for employee-side lawyers! Now, the question becomes: What should attorneys do about this? Well, in Mr. Campolongo's article he suggests including the following warning in client engagement letters:
Many employers monitor their employees' e-mails, internet usage, voicemails, and other electronic storage media. To preserve the attorney-client privilege and to avoid having any third parties gaining access to our confidential communications, please do not e-mail us from work and do not e-mail anyone else about your matter/dispute from work -- this includes logging into your private e-mail account from work, from a work laptop computer or from any company-owned equipment (e.g., Blackberry, PDA, cell phone, etc.). In addition, do not post anything related to your employment on the internet, such as postings on blogs, social networking sites, chat rooms, Facebook, or Twitter.
The ABA opinion doesn't specifically address social media, Twitter, Facebook, blogs, or other Internet postings... but I like Mr. Campolongo's aggressive, proactive stance on the issue!

Image: Public Domain Email Icon Crystal.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.