When a Confidential E-mail Between You and Your Attorney Isn’t Really Confidential

Many people understand that, generally, confidential communications between a person and his or her attorney are protected by an evidentiary privilege called the attorney-client privilege. Evidence Code section 950-962 lays out in detail how the privilege works.

What this means is that if a party or attorney wanted to know the substance of a confidential communication between the other party and that party’s attorney, an objection of attorney-client privilege can be raised and the Court should sustain that objection (i.e. grant the request).

Only “confidential communications” are subject to the privilege and what defines a “confidential communication” has been up for debate. Certainly, there is a case that everyone should know about and those cases are the focus of this blog post. It turns out there are probably countless people sending communications to their attorneys thinking they are confidential when they are really not!

Holmes v. Petrovich Development Co. (191. Cal.App.4th 1047) held that because the party used a computer owned by her employer and because that employer’s policies very clearly indicated there was no right to privacy in the use of any such computer, e-mails sent between the party and her attorney were not confidential. Specifically: “(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.’”

The Court analogized this to the party “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.”

The implications of this are staggering. If an employer has a policy similar to Petrovich’s, any e-mails sent from work computers are not subject to privilege. This is likely so even if the e-mail is sent from a personal account, but using the work computer. This most certainly would also apply to text messages sent from company cell phones. Depending on the policy of the employer, it is just as likely that e-mails sent from a personal computer using a work-email address would also not be considered confidential.

So next time you want to send a confidential e-mail to your attorney (or therapist, or doctor, or priest…there are a lot of privileges in the Evidence Code) make sure you aren’t using a company computer, company phone or a company email address!

Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding confidential communications during your divorce. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.


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