As in-house counsel, you may be called upon to review an employee’s email messages in the context of an investigation or litigation. We all know there are limitations on the discoverability and admissibility of attorney-client email communications, but under an ethics opinion recently adopted by the North Carolina State Bar, there may now be an additional consideration—whether obtaining or reviewing employee email messages amounts to a breach of a lawyer’s professional responsibility that could result in disciplinary action. On Oct. 26, 2012, the North Carolina State Bar adopted a seven-part ethics opinion, 2012 FEO 5, addressing a lawyer’s professional obligations when reviewing the emails of a client’s employee (the “Opinion"). Email Messages on an Employer’s Email System The Opinion addresses the circumstances in which an attorney may advise an employer to review its business email system “to retrieve any personal email messages sent or received by" an employee.
The Opinion’s approach to this nettlesome issue acknowledges Rule 4.4 of the Rules of Professional Conduct (“RPC"), which provides in part that “[i]n representing a client, a lawyer shall not . . . use methods of obtaining evidence that violate the legal rights" of a “third person." The rule does not, however, identify what the legal rights of an employee may be in this context. A survey of such “rights" would exceed the scope of this article, but it suffices to say that they are in flux. The Opinion advises an attorney to “research the law relating to the recovery, identification and production of employee email, including the law on attorney-client privilege." That may be easier said than done. The problem stems from the Electronic Communications Privacy Act of 1986 (the “ECPA"). The United States Court of Appeals for the Ninth Circuit has described the ECPA as “a complex, often convoluted area of the law" and its contours lie well beyond the reach of this short article.
Regardless of whether the ECPA prohibits an employer from viewing its employees’ personal email correspondence on the employer’s email system, counsel for an employer must be aware of the attorney-client privilege, which applies, generally, where (i) the attorney-client relationship existed when the correspondence was created, (ii) the correspondence was sent in confidence, and (iii) the correspondence was sent in the course of seeking or providing legal advice. The Opinion addresses the dilemma of an attorney who is told by an employer-client that email messages on the employer’s email system are marked “Attorney-Client Privileged" and appear to contain communications between an employee and his or her attorney. The Opinion concludes that the attorney may review the messages only if he or she has first determined “confidently and in good faith" that the email message is not protected by the attorney-client privilege. This sets a high standard, reflecting the Bar’s interest in protecting the privilege.
It should also be remembered that under RPC 8.4(a), a lawyer may not properly assist or induce another to do something that the lawyer could not properly do himself or herself. Therefore, the lawyer should not suggest that a non-lawyer review communications that the lawyer cannot properly review, as doing so would amount to nothing more, or less, than an end-run around the rule. Email Messages in an Employee’s Personal Account The Opinion also addresses an attorney’s review of messages in an employee’s personal email account by an employer-client who accesses the account by changing the password on the account without the employee’s consent. The Opinion concludes that a lawyer may not advise the client to change the password on a personal account, and may not review the email messages if the employer has changed a password on its own initiative, because changing a password on a personal account without authorization constitutes fraudulent conduct in violation of RPC 1.2(d) and RPC 8.4(c).
The Opinion does not directly address a troublesome scenario you may encounter—in which an employer has intercepted email messages from an employee’s personal account without having changed or used the employee’s password. We believe that in such a situation, the lawyer should conduct the same sort of analysis as is required when the email message is on the employer’s system. There may be valid arguments, depending upon the facts, in favor of permitting a lawyer to review individual messages from or to a personal email account that have been opened, saved, or printed at the workplace using the employer’s computer or network. A key factor will be the existence, publication, and prior enforcement of a well-worded policy covering the subject. Disclosure to Employee’s Counsel Somewhat counter-intuitively, even though an attorney may not review email correspondence covered by attorney-client privilege, an attorney for an overly-inquisitive employer is not permitted to inform an employee’s counsel that an employer-client has copies of privileged email messages unless he or she has the employer-client’s consent. This conclusion stems in part from RPC 1.6(a), which provides, in part, that a “lawyer shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent." What Is In-House Counsel to Do? In the past, lawyers may have been understandably tempted to tell their clients to take a look at potentially valuable email correspondence from or to the clients’ employees that had come into the clients’ possession, and perhaps even to take a look at such correspondence themselves. Today, more than ever, however, North Carolina-licensed lawyers, including in-house counsel, must carefully consider their professional responsibilities before offering such advice or taking such action. We anticipate that the Opinion will have a considerable impact on you as in-house counsel, and urge you to bear it in mind the next time that the issue of employee email arises. • Matt Cordell practices in the areas of business and financial law with Ward and Smith, P.A., and Grant Osborne also with Ward and Smith, P.A. handles a variety of employment law-related matters. Ward and Smith, P.A. is a full service law firm serving clients from offices in Asheville, Greenville, New Bern, Raleigh, and Wilmington, North Carolina.
This article was first published in The Business Lawyer in January 2013 by the North Carolina Bar Association.