I agree with Mr. Pedersen and Ms. Spencer regarding the difficulty of proving malpractice & whether it is worth the time to pursuit the malpractice case. It’s a touchy topic... also whether you should report it to the Cal Bar. Either way, your attorney did make the mistake of not telling you about the consequences of using work email to communicate confidential information which is normally privilege.
I think that if you lose your job because of the email you maybe have a claim against your attorney and also your employer as well. If you employer fires you because of the lawyer suit plus the fact that they never did anything to your report of harassment, this sounds like retaliation, which is illegal for them to do. However, the information communicated btwn you & your attorney may or not have waived the attorney client privilege. It all depends on the facts of the case. For example, if your employer had a policy that prohibited you from using the email for personal use & you were warned of it.
You should check out Holmes v. Petrovich Development Co., LLC (191 Cal.App.4th 1047, C059133), the Court concluded that e-mails sent by Holmes (the employee) to her (or his) attorney regarding possible legal action against defendants did not constitute “‘confidential communication between client and lawyer’” within the meaning of Evidence Code section 952.” The court explained: “This is so because Holmes used a computer of defendant company to send the e-mails even though (1) she had been told of the company’s policy that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail, (2) she had been warned that the company would monitor its computers for compliance with this company policy and thus might “inspect all files and messages... at any time, ” and (3) she had been explicitly advised that employees using company computers to create or maintain personal information or messages “have no right of privacy with respect to that information or message…as we explain, an attorney-client communication “does not lose its privileged character for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication.” (Evid. Code, § 917, subd. (b).) However, the e-mails sent via company computer under the circumstances of this case were akin to consulting her lawyer in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him. By using the company’s computer to communicate with her lawyer, knowing the communications violated company computer policy and could be discovered by her employer due to company monitoring of e-mail usage, Holmes did not communicate “in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted.” (Evid. Code, § 952.) Consequently, the communications were not privileged.” (pg 1052)
So depending on the facts of your case, you may have or have not waived your attorney client communication privilege, & if you did lose your case because of that fact alone, then you have a better chance of suing your attorney, etc. That is my two cents. GOOD-LUCK!
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I've shared your question with Avvo's Ethics law forum, where your question may be seen by more attorneys who practice in this area of the law. You should discuss this with your own attorney and with an attorney who practices malpractice law.
*** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***
If you were to pursue a malpractice claim, you will have to prove that the attorney fell below the standard of care of attorneys in her community, meaning those who practice what your former attorney practices and in the general geographical area. That will involve determining whether an attorney practicing before 11-459 was issued should have known that sending emails to the employee would create a waiver of the privilege.
While some prudent attorneys had already anticipated such a possibility, I am not sure if you will be able to establish that her conduct fell below the standard of care. I think it is probably a close call.
You will be required to hire an expert to provide testimony of the proper standard of care. You should start by finding an attorney malpractice attorney to consult with about taking the case.
Please note that even if you can prove the conduct fell below the standard of care, you will also have to prove that but for the emails, you would have won the case. That is not as easy as it sounds.
Good luck to you.
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