Early client education can prevent
big problems later
By Diane Karpman
A slew of recent
decisions from all over the nation clearly demonstrates a lack of consumer
knowledge regarding the idea of privilege and attorney-client emails. Recent
American Bar Association Opinion 11-459 justifiably suggests that it’s
our duty to remedy this situation.
Often what
clients “know” about the legal profession is communicated via the
media, including television and movies. Remember, when clients watch “Law
& Order,” they are not counting the constitutional violations that
occur in the interrogation room. They think that what occurs is accurate.
Clients will only know what their lawyers teach them about privilege.
The overarching
principle in much of professional responsibility involves client expectations.
Create reasonable expectations that will justify a finding of privilege when
needed or you will miss a golden opportunity to aid your clients.
The best time to
educate clients about privilege is at the inception of the relationship with
the retainer/engagement letter. Many of you have done that for years with a box
in the fee agreement, where clients can check how they want to communicate with
you. Many of you would never dream of sending a fax in an employment case to a
client’s shared facsimile machine at the office. These are not new or
novel issues. However, email and technology are causing us all to reconsider
some of these privilege issues, and it’s our responsibility to inform the
client.
Let’s
assume an employee discusses potential litigation against an employer with a
lawyer via office email. The employer’s handbook unequivocally tells the
employee that company computers are not to be used for personal purposes and
aggressively warns the employee that the employer can and will monitor emails
sent from and to the workplace. Employee sues and employer recovers all
employee’s emails. Employer informs employee’s lawyers that they
will use the emails in the litigation. Employee’s lawyer files a motion
asking that the email be returned and barred from use in trial.
Nationally, this
is an increasingly common scenario. In a recent California case, Holmes v.
Petrovich Dev. Co., LLC, 2011 WL 117230 (Cal. App. 3 Dist. Jan. 13, 2011),
the employee had to face the consequences of these emails, because the
employer’s handbook and other warnings made any expectations of privilege
unreasonable. New York would agree, but New Jersey would protect the privilege and
might disqualify the employer’s lawyers for refusing to return the email
unread.
ABA Opinion
11-459 maintains that lawyers need to anticipate that employers will use
handbooks and warnings to destroy employee expectations of privilege. It is our
responsibility as lawyers to guard against this. This issue also arises in
“shared” communications devices in family law matters.
A few weeks ago,
I had the opportunity to discuss these issues on NPR on “All Things
Considered.” Click on this link,
and you can hear more of this discussion, which also involves ownership of the
account, ownership of the device, private passwords, etc.
• Legal ethics expert Diane Karpman can be reached at 310-887-3900 or at karpethics@aol.com