Sending the wrong message

Listen to this article

Communication between attorneys and clients is essential when working through the details of a case, but doing so on an employer’s computer can be potentially dangerous, according to state employment lawyers.

“My first concern would be with regards to attorney-client privileges,” said attorney Amy F. Scarr, a private practitioner in Madison, who has represented employees for 13 years.

Though she has not encountered a situation where she has had to discuss a case via e-mail with a client while at work, Scarr said she would certainly discourage the practice should it ever arise.

“There’s just too much of a risk involved should anyone else at an office read an e-mail and once it’s out there, you can’t have control over the information anymore,” said Scarr.

Company Policy

In some cases, employers notify employees upon hire what its Internet parameters are concerning e-mail, appropriate Web sites and content.

Attorney Shana R. Lewis of Lathrop & Clark LLP, in Madison said the limits of an employer’s Internet usage can differ from business to business, but employees should be aware of any policy prior to engaging an attorney at work.

“I think in many situations, it really depends on the employer’s acceptable use policy,” said Lewis, who primarily represents employers in the public sector. “In my experience, many companies notify employees that any message they send or activity they participate in on a computer is not private, and the employer reserves the right to monitor that activity.”

If an employee chooses to ignore the policy, then they run the risk of severely crippling their case, said Lewis, citing the recent situation in Cedarburg involving a teacher who was fired for viewing pornographic images on a school computer.

“Just because an e-mail or image is for personal use, that does not mean it’s going to be taken out of the realm of public record,” said Lewis.

The same premise could apply to a client who converses online with his or her attorney, despite being explicitly educated that the company monitors Internet usage.

“If an employee takes the risk in sending an e-mail to legal counsel, even if they have been told explicitly that the company monitors online activity, I’m not sure how the courts here would deal with the attorney-client privilege with regards to that issue,” said Lewis.

National Cases

While attorneys were unaware of any specific cases popping up in Wisconsin, a pair of cases relating to e-mail and attorney-client privilege were recently decided in New York.

In Curto v. Medical World Communications, the court last year ruled that although the employer had instituted a usage policy, it was never enforced and there was no waiver of attorney-client privilege.

Communications with the employee’s attorney were conducted through company e-mail, but done at home on a company-issued laptop which was not connected to the company network.

“Because the employer had never previously enforced its monitoring policy, the court ruled that they couldn’t just start with that instance and that’s a common problem in these cases,” said attorney Bonnie A. Wendorff of Neider & Boucher, SC, in Madison.

But another 2006 decision in New York, Long v. Marubeni America Corp., did find that there was a waiver of attorney-client privilege because the company sufficiently enforced its usage policy.

Several employees generated e-mails to their attorneys during a lawsuit against Marubeni through private password accounts and a company policy forbidding any personal usage on company computers was upheld.

“The company had some kind of software installed which took e-mails coming in and out and stored them in folders on computer,” said Wendorff. “The ruling was that the company had prohibited the e-mails and did the monitoring, so there was a waiver.”

Wendorff called the ruling “harsh” and questioned whether the employees knew they were waiving their attorney-client privileges when they sent the e-mails.

“Probably not, because you cannot involuntarily waive your attorney-client privilege,” said Wendorff, who has been an employment law attorney for two decades.