E-mail unquestionably enhances the quality of many individual representations. But when clients use their work e-mails, systems or devices to communicate with their lawyers, they may, unwittingly, compromise the privileged nature of those communications, exposing those candid exchanges to their adversaries or to regulators and prosecutors. For some time, many lawyers have advised clients to use personal, web-based e-mail for attorney-client communications, and to refrain from sending e-mails and text messages from their employer-issued BlackBerrys—instructions all too often observed in the breach. A growing body of case law, and a recent opinion issued by the American Bar Association, make clear that lawyers must help clients assess the risks of sending e-mails from work systems or devices.
The ‘Asia Global’ Factors
The first court in the Southern District of New York to address the question of whether communications that would otherwise be privileged lose that character because they are sent over an employer e-mail system or computer, was the U.S. Bankruptcy Court in In re Asia Global Crossing, Ltd.1 In that case, a bankruptcy trustee sought e-mails sent by the debtor’s former employees to their personal attorneys over the debtor’s e-mail system—a request resisted by the former employees on the grounds of attorney-client privilege. In the context of e-mail sent through an employer’s computer system, the court reasoned that an employee’s expectations of confidentiality (essential for any claim of privilege) are closely linked to his or her expectations of privacy, which in turn depend on office practice and procedure.
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