Employers have a right, and in some cases a duty, to monitor the e-mail communications of their employees that are sent from the employer’s e-mail system. As a general matter, employees have no expectation of privacy in e-mails sent through their workplace system. Since employees who communicate with their personal lawyers through their employer’s e-mail are subject to employer monitoring, the American Bar Association has issued a formal ethics opinion stating that lawyers have a duty to warn such employees that their e-mails may not be confidential.
The Opinion expressly reserves on the question of whether the breach of confidentiality would vitiate the attorney-client privilege, declaring "the law appears to be evolving." But the cases cited in the ethics opinion on when employee communications with counsel through workplace e-mail will remain privileged show that the circumstances are limited when the privilege is likely to survive, leading to this observation:
Nevertheless, we consider the ethical implications posed by the risks that these communications will be reviewed by others and held admissible in legal proceedings.
Thus, the ABA concluded that a lawyer has an ethical obligation to advise a client of the risks of sending attorney-client communications via workplace e-mail.
The ABA ethics opinion raises the question of whether lawyers who know that their clients are using modes of communication that may not be secure, and may be subject to interception and review by others (thus jeopardizing the privilege) have an ethical duty to warn their clients beyond the context of workplace e-mail.
In 2008, the New York State Bar opined that the use of Gmail for attorney-client communications, even though e-mails sent through Gmail are subject to scanning by Google computers for the delivery of contextual advertising, retained the attorney-client privilege. But with the advent of many new means of electronic communication, from Facebook to Twitter and beyond, and with smart mobile devices becoming a dominant method of communication, and with varying individual privacy and data security practices on the part of clients, quaere whether a lawyer has an ethical duty to evaluate a client’s communications practices and to advise on the risks that confidentiality may be lost. The ABA Opinion opens the door to such an inquiry.