Q&A with Susan B. Loving
Be cautious using work email
Q: Is it wise for employees who suspect they may be fired to use their work email to communicate with their attorneys?
A: You should certainly be extremely cautious in communicating with your attorney through any email account to which any others could have access. You would be well-advised to cease all email activity from any computer other than your own, and any email account others may have access to.
Q: What about attorney/client privilege?
A: In deciding whether attorney-client communications through an employer's computer are protected from disclosure, courts generally look at four factors: whether the employer has a policy banning personal or other uses of employer-provided computers; whether the company monitors the general use of employee computers, and/or email; whether the computer is shared with others and if the password is confidential; and whether the employee is aware of these use and monitoring policies. Another issue is whether the employee is using his or her employer-based email address, or a separate web-based address, such as hotmail. Many employees believe if they use a separate email address, their communications are protected, even if they occur at work on an employer-provided computer. And in some instances, this does make a difference. If the employer's policy is not clear on this issue, a court might find the employee had a reasonable expectation of privacy. However, this area of law is not clear, thus caution is advised.