I like hearing from my clients – except when they email me from work. Why? Because that email may not be protected by the attorney client privilege, and therefore it may harm the client’s personal injury or medical malpractice case.
A bit of background. In New York, communications between clients and their attorneys are generally protected by the attorney client privilege. So, if a client tells me something in the context of the attorney client relationship, that information is confidential and neither my clients or I can be forced to disclose that communication. (For my legal colleagues yes there are exceptions, but let’s set those aside for the moment.) This helps clients communicate honestly and openly with attorneys such as me.
But if there is no “expectation of privacy” clients and attorneys can destroy that privilege.
And that brings us back to work, and the client’s “expectation of privacy” at work. In short, at this point, in most workplaces, there is none. New York courts have found no expectation of privacy if the employee accepted an employer policy and procedure manual that stated that there was no email privacy, when the client emailed her attorney from the employer’s server, when the client emailed the attorney using a work email, when third parties had rights and access to the email server, and when the employer monitored emails and notified the employee of such monitoring. (See Perenboom v. Marvel Entm’t LLC, 2016 NY Slip Op 31957[U],*6 [Sup Ct. New York County 2016]).
Because these factors are common in today’s workplace, as a client you should assume that any emails that you send to your attorney from your workplace are not privileged and can be accessed by opposing counsel with enough effort. The takeaway? Simple. Do not send emails to your attorney from work. Wait to get home to send that email to us.
The takeaway for my professional colleagues ? If you have not done so already, consider advising your clients in writing to avoid work emails and put that in your retainer agreement.