Technology pervades everyone’s daily life. Sometimes technology makes life simpler and at times it makes life more complicated, but as lawyers, our involvement with technology goes beyond simply our use of it. All lawyers, and employment lawyers in particular, need to be aware of how technology can affect their practices and how to advise their clients to use, or in some cases not use, certain technologies in order to best protect clients’ interests. This article will examine three areas where technology has impacted employment law and practice: e-mail communications with clients, claims asserted under the Computer Fraud and Abuse Act, and employer liability for accidents caused by an employee driving while using a cell phone.
Attorney-Client Privilege in E-mails
How many lawyers have clients that communicate with them from e-mails sent from the client’s office e-mail address? Presumably all lawyers’ e-mails contain the ubiquitous disclaimer at the bottom of their e-mails announcing the confidential nature of the e-mail, but is that enough to protect the attorney-client privilege when the client is communicating from work? The answer is not the simple “yes” that most attorneys and clients would presume. Although there is a scarcity of published decisions on the issue of the confidentiality of e-mails sent from or received at work, courts that have decided the issue have uniformly applied the “reasonable expectation of privacy” test used in Fourth Amendment cases. In other words, the attorney-client privilege will only attach to such e-mails if the client had a reasonable expectation of the privacy in the use of the employer’s computer systems.
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