One of the oldest principles of legal ethics is that confidential communications between attorney and client are privileged. This privilege ensures full and frank communications between attorneys and their clients, without concern over disclosure to third parties. But online communications can complicate the privilege analysis. The Court of Appeals recently addressed one of these complications in Stavale v Stavale, __ Mich App ___; 2020 WL 3107691 (June 11, 2020).
Stavale was a divorce case in which the wife subpoenaed her husband’s employer for emails that her husband sent to his personal attorney through his employer-provided email address. The husband moved to quash the subpoenas, citing the attorney-client privilege. The wife responded that the privilege didn’t apply because, according to the employer’s employee handbook, the husband had no reasonable expectation of privacy when using his work-provided email address.
Addressing this case of first impression, the Court of Appeals developed a framework for determining whether there is a reasonable expectation of privacy when communicating with an employer-provided email address.
After examining other jurisdictions’ rulings on this issue, the Court identified two factors for consideration: (1) whether the employer maintains a policy regarding the use of its email or computer system and, if so, what that policy entails, and (2) whether the employee was ever notified or aware of the employer’s policies and practices concerning computer privacy and monitoring. The Court instructed that these issues should be decided on a case-by-case basis, and that the two factors are not exhaustive.
In Stavale, the husband’s employee handbook stated that employees had no reasonable expectation of privacy when using their employer-provided email addresses. The Court concluded that an employee who knew about this unambiguous policy and still used an employer-provided email address to communicate with an attorney was not taking reasonable precautions to preserve confidentiality. But the Court also held that it wasn’t clear whether the husband knew about the employer’s policy. It remanded the case to the trial court to determine whether the employee had a reasonable expectation of privacy under the Court’s new framework.
What this means for attorneys
The attorney-client privilege doesn’t necessarily apply to communications using an employer-provided email address. The best practice to protect client communications is to advise clients to use a personal email address and a personal computer or device.