Sending Your Lawyer An Email From Work?

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The American Bar Association recently introduced a new ethics opinion that advises clients about using work computers to communicate with their lawyers. The ABA says this could jeopardize confidential information. Michele Norris talks to ethics lawyer Diane Karpman from Beverly Hills, Calif.

MICHELE NORRIS, host: If you've been using your work computer to email your attorney, you might want to give that a second thought. Those notes may not be subject to attorney-client privilege, and you may not be able to keep them private. That advice comes from the American Bar Association's Committee on Ethics and Professional Responsibility. And it applies not just to work computers but to any device that is shared with someone else - a hotel or a library computer, for instance.

Attorney Diane Karpman is a legal ethics expert, and she joins us now. Help us better understand the message that the ABA is sending here with this directive. What is the danger of using a shared computer to communicate with your lawyer?

DIANE KARPMAN: Well, the basis is all clients have an amazing privilege in the United States that anything they tell their lawyer will forever remain confidential. But they cannot be cavalier or casual with that amazing privilege. So, say if you were in Yankee Stadium and you had a talk with your lawyer, and everyone is listening in. Well, then you couldn't claim privilege because you didn't have an expectation of confidentiality. And that is the basis of the privileges that you expected, or you believed it would be privileged.

NORRIS: Is there a case that you can tick through quickly that stands as a red flag, that helps illustrate the danger here?

KARPMAN: Well, we have a terrific case in California called Holmes v. Petrovich. I'm not going to bore your listeners with citations. But in that case, the employee was told by the company not to expect confidentiality in the workplace.

So then this employee wants to sue for sexual harassment and pregnancy discrimination, and is discussing the case with her lawyer via company email account. And then down the road, of course, the company obtains all those emails and wants to use it in the litigation.

Well, you can bet that the lawyer and the employee certainly desperately tried to block the discovery of that information. And the court said, we don't think so. With all the warnings that you got, it was almost as if you were consulting with your lawyer in the employee lunchroom over a microphone, in a loud voice, with the door wide open.

NORRIS: So if you have to be wary about using a company device or a company computer to contact your attorney, should you also be wary about using a company phone to text your lawyer or send an email that way?

KARPMAN: Well, as a matter of fact, that probably would be a very good idea, particularly - you know when you call a call center or certain governmental agencies, they'll say oh, well, this conversation may be monitored for quality assurance issues? They are clearly telling you someone might be listening in to that conversation at a future point.

NORRIS: What if you used a company computer, or a computer shared by someone else, to communicate with your attorney - not through the company email system, but on a private account that was accessed through the company computer; a Gmail or a Yahoo account, or something like that?

KARPMAN: Well, Michele, in that circumstance, you have a greater expectation of confidentiality because the company would not know your password. And so how would they physically get it? So what's going on is, we're seeing the courts very carefully parsing out these various factors, like who owns the server, who pays the leasing cost, who owns the account. The courts need to be extremely conservative to prevent judicial error with emerging technology.

NORRIS: That's attorney Diane Karpman. She is a legal ethics expert. She practices law in Beverly Hills, California. Diane Karpman, thanks so much for your time.

KARPMAN: Thank you.


NORRIS: This is NPR.

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