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Companies can adopt lawful policies relating to computer use to protect the assets, reputation, and productivity of a business and to ensure compliance with legitimate corporate policies. And employers can enforce such policies. They may discipline employees and, when appropriate, terminate them, for violating proper workplace rules that are not inconsistent with a clear mandate of public policy. But employers have no need or basis to read the specific contents of personal, privileged, attorney-client communications in order to enforce corporate policy. Because of the important public policy concerns underlying the attorney-client privilege, even a clearly written company manual--that is, a policy that bans all personal computer use and provides unambiguous notice that an employer can retrieve and read an employee's attorney-client communications, if accessed on a personal, password-protected e-mail account using the company's computer system--would not be enforceable.
Loving Care, the employer, provided Stengart, its employee, with a laptop computer, which she used to communicate with her personal attorney about her working conditions and a possible suit against her employer. She returned the laptop after she resigned. After Stengart filed suit, the employer hired a computer expert, who retrieved e-mails between the employee and her attorney from the laptop's hard drive. The employer's counsel read the e-mails and used information culled from them during discovery. The trial court held that as the employee was on notice that all e-mails on her computer were the employer's property, they were not privileged, and denied the employee's request to disqualify the employer's counsel. On Stengart's appeal to the Appellate Division, the appellate court reversed, finding Loving Care's counsel violated N.J. R. Prof. Conduct 4.4(b). Both the employer and its counsel sought further review in the Supreme Court of New Jersey.
Can an employee expect privacy and confidentiality in e-mails with her personal attorney, which she sent and received through her personal, password-protected, web-based e-mail account using the employer-issued computer?
Stengart could reasonably expect that e-mail communications with her lawyer through her personal, password-protected, web-based e-mail account would remain private, and that sending and receiving them using a company laptop did not eliminate the attorney-client privilege that protected them. By reading e-mails that were at least arguably privileged and failing to promptly notify Stengart about them, Loving Care's counsel violated RPC 4.4(b). The attorney-client privilege encourages free and full disclosure of information from the client to the attorney. To be protected, a communication must initially be expressed by a client in connection with receiving legal advice, with the expectation that its contents remain confidential. The e-mails between Stengart and her lawyer contain a standard warning that their contents are personal and confidential and may constitute attorney-client communications. The subject matter of those messages appears to relate to Stengart's anticipated lawsuit against Loving Care.