Ride the Lightning

PHYSICIAN, HEAL THYSELF: DO NOT E-MAIL YOUR ATTORNEY FROM WORK!

November 2, 2007

Though there are cases on both sides of this issue, here comes another case holding that e-mails sent by a client from work to attorneys were not protected by the attorney/client privilege. The e-mails in question were written by a physician to his attorneys at Paul Weiss Rifkind Wharton & Garrison. They were sent from Beth Israel Medical Center’s computer network. The Center has an e-mail policy stating that employees have no personal property right in their messages and that the Center has the right to read and disclose e-mails. Judge Charles Ramos of Manhattan found that there was no privilege protecting these e-mails in a lawsuit by physician W. Norman Scott that claims he was fired in violation of his contract. Scott’s lawyers had argued that the firm’s e-mail confidentiality notice protected the e-mail, but Ramos rejected that argument, finding that the disclaimer “cannot create a right to confidentiality out of whole cloth."

The full ABA article may be found at: http://www.abajournal.com/weekly/e_mail_to_lawyer_not_privileged_
because_of_employer_policy

Though there are cases which have reached the opposite conclusion, our advice to lawyers remains the same: In your retainers, tell clients not to e-mail you from any work computer/device and make them initial that provision to protect yourselves if they violate it. Remember that it makes NO difference whether they use the business e-mail address or a web-based e-mail address. If they are transmitting from a work computer/device, in most cases, under current law, there will be no privilege, especially where there is an explicit policy stating that there is no privacy expectation.

*solemnly tipping my hat* Thanks to Jessica Justice (Assistant Dean of CLE at WVU College of Law) and Alan Goldberg (solo practitioner and adjunct professor at Marymount University and George Mason University) for sending this story along. Most timely, my friends, since John and I are lecturing to The Association of Nurse Attorneys in Newport, R.I. The ABA weekly e-newsletter was in my Inbox but I might not have opened it in time for the presentation! Thanks.

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