Consider this example: If Emily, an employee, wants to communicate with her lawyer about her employer, ACME, Inc., regarding her concerns about sexual harassment in the workplace, she ordinarily may do so with every confidence that the communication will not lose its confidential nature. However, one way that the private, confidential nature of Emily’s communication to her lawyer may be lost is if she and/or her lawyer uses the ACME email domain/server to communicate. This is particularly true in instances where the employer has made it clear in its handbook that employees have no expectation of privacy in communications made over the company’s email server.
If an employee uses an employer’s email domain to communicate with his or her lawyer, there is a significant risk that the communications may lose the protection of confidentiality. This was the case in a recent Florida case, where the court said that the information sent between client and attorney over the employer’s email domain and server was not protected by rules of confidentiality and the attorney client privilege.
As such, an employee is well-advised to use an email domain other than one that is provided by the employer when communicating with their lawyer. The employer is well-advised to specify as part of its policies in its employee handbook that employees should not expect privacy or confidentiality for matters that are shared over the employer’s email domain. In other words, employers should consider drafting a well-written policy that there is no expectation of privacy if the employee uses the employer’s server or email domain for personal purposes. Finally, although it may be inconvenient, a person or business that communicates with an attorney should take care to use a method of communication that maintains confidentiality, one of the greatest benefits of seeking legal advice from an attorney.
