A recent ABA Ethics Opinion states that lawyers have a duty to warn clients about using an employer’s device, such as a work computer or work email account, to correspond with their lawyers. Clients may not be afforded a ‘reasonable expectation of privacy’ when they use an employer’s computer to send e-mails to their attorneys or receive e-mails from their attorneys. As you know, the attorney-client privilege will be destroyed if the communication is viewed by a third party.
ABA Model Rule of Professional Conduct 1.6 (a) explains that a lawyer must not reveal any information relating to representation of the client without consent, and must competently protect the confidentiality of the client. Considering that employers often have policies reserving a right of access to employees’ communications via the employer’s e-mail account, computers or other devices, such as smart phones and tablet devices, it is essential to warn the client to be careful of what he or she says, especially in an employment case involving the employer.