Comments on: Emailing clients at work may imperil privilege http://lawyerist.com/emailing-clients-at-work-may-imperil-privilege/ the lawyering survival guide Tue, 16 Mar 2010 03:30:45 -0600 http://wordpress.org/?v=2.9.2 hourly 1 By: Legal Blog Roundup: Early Terminaton Clause Edition - Avvo Blog http://lawyerist.com/emailing-clients-at-work-may-imperil-privilege/comment-page-1/#comment-6654 Legal Blog Roundup: Early Terminaton Clause Edition - Avvo Blog Sun, 26 Apr 2009 15:22:10 +0000 http://lawyerist.com/?p=1876#comment-6654 [...] points to a troubling case where a New Jersey court found plaintiff employee had waived her attorney-client privilege by using an employer issued laptop to communicate with counsel - even though the employee was using [...] [...] points to a troubling case where a New Jersey court found plaintiff employee had waived her attorney-client privilege by using an employer issued laptop to communicate with counsel – even though the employee was using [...]

]]> By: Eric Cooperstein http://lawyerist.com/emailing-clients-at-work-may-imperil-privilege/comment-page-1/#comment-6455 Eric Cooperstein Tue, 21 Apr 2009 16:33:37 +0000 http://lawyerist.com/?p=1876#comment-6455 Yes, I completely agree — this is not an issue for corporate representation. Lawyers for corps have different privilege worries, such as non-lawyer constituents casually circulating otherwise-privileged e-mails to others who do not “need to know” what’s in the e-mail. Almost all the cases I’ve seen on this issue are employee-employer disputes, but there is at least one criminal case as well, a 2005 California case, People v. Jiang, where the prosecutor subpoenaed the defendant’s employer-provided laptop and the district court found waiver of password-protected documents prepared for the defendant’s lawyers (an appellate court later reversed). So I think the extent of the risk outside of employment law remains to be seen. Yes, I completely agree — this is not an issue for corporate representation. Lawyers for corps have different privilege worries, such as non-lawyer constituents casually circulating otherwise-privileged e-mails to others who do not “need to know” what’s in the e-mail.

Almost all the cases I’ve seen on this issue are employee-employer disputes, but there is at least one criminal case as well, a 2005 California case, People v. Jiang, where the prosecutor subpoenaed the defendant’s employer-provided laptop and the district court found waiver of password-protected documents prepared for the defendant’s lawyers (an appellate court later reversed). So I think the extent of the risk outside of employment law remains to be seen.

]]> By: Doug Cornelius http://lawyerist.com/emailing-clients-at-work-may-imperil-privilege/comment-page-1/#comment-6445 Doug Cornelius Tue, 21 Apr 2009 14:14:25 +0000 http://lawyerist.com/?p=1876#comment-6445 Just to be clear, your warning is when the employee is the client, separate from the employee's company. This is not a problem when emailing the representative of the company as part of an engagement with the company. I think Stengart can be limited because the employee was suing the company. I am not sure the same would be true for a lawsuit not involving the employee's company. I do find it troubling that the party in Stengsrt was using her employee's computer and internet access to bring suit against her employer. I like the Stengart ruling but do not think it should be read so broad as to destroy the attorney-privilege except in that limited circumstance. Just to be clear, your warning is when the employee is the client, separate from the employee’s company. This is not a problem when emailing the representative of the company as part of an engagement with the company.

I think Stengart can be limited because the employee was suing the company. I am not sure the same would be true for a lawsuit not involving the employee’s company. I do find it troubling that the party in Stengsrt was using her employee’s computer and internet access to bring suit against her employer. I like the Stengart ruling but do not think it should be read so broad as to destroy the attorney-privilege except in that limited circumstance.

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