Think Twice Before You Hit Send: Employer Provided Email and the Attorney-Client Privilege

July 6, 2020

Most persons of the general public are at least generally familiar with the Attorney-Client Privilege—the legal principal that communications between an attorney and his or her client will be kept secret and confidential.  However, modern communications have presented questions regarding the scope of the attorney-client privilege.  Recently, courts have confronted the issue of whether the attorney client privilege applies to communications between an attorney and his or her client where the client, an individual, uses an employer provided email account to communicate with his or her personal attorney.

The Michigan Court of Appeals recently addressed this issue for the first time, holding that the attorney-client privilege will not apply to a communication between an attorney and his or her client where the client uses an employer provided email account without a reasonable expectation of privacy.  Stavale v Stavale, ____ Mich App ___ (2020) (Docket No. 349472).  In Stavale, the Plaintiff in a divorce proceeding issued a subpoena to Defendant’s employer, demanding that the employer produce emails that the Defendant had sent to his personal attorney using his employer provided email address.  The Defendant objected, arguing that these communications were protected by the attorney-client privilege and, therefore, not subject to disclosure.

The Michigan Court of Appeals ultimately determined that whether the attorney-client privilege applies to personal communications between an employee and his or her attorney that occurred through the employee’s work-provided email account depends on whether the employee had a reasonable expectation of privacy in his or her use of the employer-provided email.  The Court reasoned that where an employee does not have a reasonable expectation of privacy, the communication is not considered confidential and, therefore, not protected by the attorney-client privilege.  The Court further stated that, in order to determine whether a reasonable expectation of privacy exists, “it is relevant to consider (1) whether the employer maintains a policy with respect to the use of those systems and what the policy entails, and (2) whether the employee was ever notified or made aware of the employer’s policies and practices with respect to computer privacy and monitoring.”  Stavale, slip op at 6.  In other words, where an employer informs an employee that he or she does not have an expectation of privacy in the use of his or her work email, the privilege will not apply to personal attorney-client communications.

This is an immensely important decision for both employees and employers.  Employees (and attorneys) will want to think twice before communication over a client’s work provided email, as such communications may be subject to disclosure.  Additionally, employers, so as to avoid being unnecessarily dragged into an employee’s personal litigation, will want to clarify whether an employee’s communications via the employer’s work provided email are subject to a reasonable expectation of privacy.  Most importantly, as with many other platforms today, one will want to think twice before he or she hits send.