Another state ethics commission has weighed in on a topic we have covered in our newsletter before – whether an employer’s counsel is ethically obligated to notify an employee’s counsel that the employer has copies of email messages between the employee and her counsel.  The North Carolina Ethics Committee joins the American Bar Association Standing Committee on Ethics and Professional Responsibility in deciding that an employer’s counsel is not ethically obligated to notify an employee’s counsel that the employer has copies of email messages between the employee and her counsel on the employer’s email system.  North Carolina State Bar Ethics Comm., Op. 2012-5 (Oct. 26, 2012).  The North Carolina Committee opined that Rule 4.4(b), which obligates a lawyer to notify the sender upon receiving an “inadvertently sent” writing, does not apply because the employee and her lawyer knowingly used the employer’s email system.  Moreover, the employer’s counsel would need to consult with the employer and receive informed consent to disclose the employer’s possession of the emails because that fact is confidential information that may not be disclosed unilaterally by counsel under Rule 1.6, unless one of the exceptions to the duty of the confidentiality exists.  The opinion considered related ethical questions and advised that before instructing the employer to search its email system for the employee’s messages to and from counsel, the employer’s attorney should research the applicable federal and local law relating to employee email, including the law on attorney-client privilege, because Rule 4.4(a) forbids lawyers to use methods of obtaining evidence that violate a person’s legal rights.  The Committee stated that if the employer’s attorney is able to conclude confidently and in good faith that the attorney-client privilege was waived, she may read the emails and use them to represent the employer.  However, the Committee suggested that counsel seek a ruling from the court on the privilege issue if the case is in litigation.  The Committee also advised that if the employee has a password-protected personal email account with a service such as Gmail or Hotmail, that is accessed through a work computer, the employer’s counsel may not advise the employer to access the email messages on the personal account by changing the password.  That advice would violate Rule 1.2(d), which prohibits lawyers from counseling a client to engage in criminal or fraudulent conduct, and Rule 8.4(c), which forbids lawyers to engage in conduct involving dishonesty or deceit.