Still Sacred: The Attorney Client Privilege

In March, 2010, the New Jersey Supreme Court made a decision that sent ripples through the employment sector

. In short, the ruling meant that an employee had a reasonable expectation of privacy in email communications with her lawyer that were sent through a private, personal web-based account, even though those communications were stored on a company-issued computer. Not only that, but to add even more to the ruling, the email communications were in regard to a claim against her employer.

A. Harrison Barnes, lawyer and founder of LawCrossing.com says that the Court opted to not limit its decision to the facts presented and went a step further by stating even a policy that banned all personal computer use and provided unambiguous notice that an employer could retrieve and read an employees' attorney-client communications . . . would not be enforceable." In short, New Jersey employers may not read their employees' email exchanges with personal attorneys, even when stored on a company computer regardless of whether the employer's electronic resources policy expressly grants the employer the right to do so.

The Case

Loving Care Agency, Inc. gave the plaintiff a laptop computer for use in the course of her job. She was also issued a work-related e-mail address. The plaintiff used this laptop to access her personal Yahoo email account, which is where she communicated with her lawyer about an employment discrimination lawsuit. After a forensics computer expert spent a few minutes with the laptop, he was able to recover those Yahoo emails and provide them to the companys legal counsel. In the course of discovery, the plaintiffs lawyers demanded that privilege was attached, even though the companys lawyers said it had been waived since it was on company property. One court ruled in favor of the company and the Appellate Division reversed that decision, reasoning that Loving Care's policy was too ambiguous to defeat the plaintiff's privacy expectations. The New Jersey Supreme Court upheld the Appellate Divisions decision and called the policy ambiguous and that it did not diminish the plaintiffs expectation of privacy with respect to her communications with her attorney.

So what does this mean for employers? One thing, says A. Harrison Barnes, which is crucial to understand is that the rulings implications will affect not only employers in New Jersey, but employers across the country, too. Its likely a new precedent has been set that will bring attorney client privilege to new heights, even when its stored on a computer that does not belong to either the attorney or the client.

Still, the LawCrossing.com warns employees to keep private information away from company computers. This case could have realistically gone either way, as evidenced by the two different rulings by two different courts. But for the footer that was included at the bottom of every email received or sent by the lawyers that stated all communications were personal and confidential, this case could have resulted in a very different outcome.

by: Harrison Barnes

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