The United States District Court for the Eastern District of New York recently held, in connection with a criminal prosecution, that information a lawyer sent to his client by e-mail was not protected by the attorneyclient privilege. In United States v. Finazzo (February 2013), an estate planning attorney sent Mr. Finazzo an e-mail to his office e-mail address containing a list of assets to be covered by his estate plan. Some of the assets listed in the attorney’s e-mail were interests in companies that were vendors to his employer, and he should have disclosed his ownership of these interests to the employer.
In a subsequent criminal prosecution arising, in part, from such undisclosed interests, Mr. Finazzo moved to exclude the material in the e-mail because it was in the form of a communication from his attorney subject to the attorney-client privilege. But Mr. Finazzo’s employer had an e-mail policy that provided, in part, that an employee had no expectation of privacy with respect to e-mail communications to and from his company e-mail address. Any e-mail communication was subject to review and monitoring by the company without permission from the employee.
The court ruled that the communication was not privileged because, in order for a communication between an attorney and his client to be subject to privilege, the communication must be one the client intends to keep confidential and does, in fact, keep confidential. The client waives the privilege by disclosing the communication to third parties. The court ruled that the client could not have intended to keep the e-mail confidential because, under the company’s e-mail policy, an employee’s e-mail was subject to review and monitoring by the company at any time, and the communication was not privileged.
Even outside the criminal law arena, always be careful about what you say in an e-mail communication and what you attach to it. Any e-mail communication is likely to be preserved somewhere for an extended period. Under the rule of this case, no privilege applies to any communication with an attorney from your office e-mail account if your company has a similar policy, and most companies do have these policies