BLAWG

While it is never advisable for employees to communicate with their attorneys on their employers’ email and computers—particularly when communicating about claims against their employers—a recent California Court of Appeal decision concluded that such communications may not be protected by the attorney-client privilege.

In Holmes v. Petrovich Development Co., LLC, 2011 Cal. App. LEXIS (January 13, 2011), a California Court of Appeal held that such communications between attorney and client were not privileged because (1) the electronic means belonged to the employer, (2) the employer had advised the employee that her electronic communications were not private, could be monitored, and could be used only for business purposes, and (3) employee was aware of and agreed to these conditions. Under the circumstances, the Holmes Court held that the communications were not confidential. In fact, the Court commented that it was “akin to consulting her attorney in one of [employer’s] conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard by [employer] would be privileged.”

Although the result may have been different if the employee had communicated with her attorney from work through a personal web-based email account or if the employer’s policy had been less clear, employees should assume that all communications from company computers are not private or confidential. Likewise, attorneys should advise their clients not to open emails containing attorney-client communications on their company computers