By: Ashley Nelson
One of the most commonly asserted privileges in litigation is the attorney-client privilege. While many assume that anything said to an attorney is protected by this privilege, it would be a grave mistake to misunderstand the narrow application. In particular, clients and their lawyers should be aware of clients unintentionally waiving their attorney-client privilege by simply using a company email to communicate with their personal attorney.
The Attorney-Client Privilege, Generally
A client can prevent disclosure of attorney-client communications made in confidence “to facilitate the rendition of professional legal services to the client.” Tex. R. Evid. 503(b)(1). Further, “[t]his means that the communication must be ‘made by a client seeking legal advice from a lawyer in his capacity as such and the communication must relate to the purpose for which the advice is sought ....’” In re Silver, 540 S.W.3d 530, 539 (Tex. 2018) (quoting Duval Cty. Ranch Co. v. Alamo Lumber Co., 663 S.W.2d 627, 634 (Tex. App.—Amarillo 1983, writ ref'd n.r.e.). The party asserting the privilege has the burden to produce evidence, including evidence of confidentiality. Griffin v. Smith, 688 S.W.2d 112, 114 (Tex. 1985).
The attorney-client privilege protects only the following:
(1) The communications made. It does not protect the underlying facts that may be contained within the communication. Huie v. DeShazo, 922 S.W.2d 920 (Tex. 1996).
(2) Communications that are essential or germane to a client obtaining legal services or advice. Thus, when a lawyer is communicating with a client in an alternative capacity, i.e. as a friend, those communications are not protected. McAfee v. State, 467 S.W.3d 622, 643–44 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd).
(3) Communications made with the intent that the communication was in confidence and was not to be disclosed to third parties.
(4) Communications between privileged persons.
A Client’s Use of a Company Email Affecting the Attorney-Client Privilege
An issue that is addressed by several jurisdictions throughout the country is the applicability of the attorney-client privilege when a client communicates with his personal attorney over a company email. Importantly, courts have questioned whether a client could actually intend the communication be confidential, which is an essential element of the attorney-client privilege, because there is no objectively reasonable expectation of privacy. While this issue has not been addressed directly in Texas, it is important that clients understand when they may unintentionally waive their privilege by choosing to communicate with their attorney over a company email.
The American Bar Association wrote a formal opinion discussing this issue. Accordingly, one factor that jurisdictions consider is the use of the company’s computer. Moreover, the jurisdictions differ on the applicability of the attorney-client privilege when a company computer is used, but there is a general consensus of when a company email is used the privilege does not apply. Within the article, the ABA cited the following holdings of various jurisdictions throughout the country:
Moreover, courts also consider the existence of a company policy allowing employers to access employees’ computers and emails when determining whether the attorney-client privilege is applicable. A prominent four-pronged approach is used by courts to determine whether the attorney-client privilege will apply in this context: (In re Asia Glob. Crossing, Ltd., 322 B.R. 247, 257 (Bankr. S.D.N.Y. 2005)):
(1) does the corporation maintain a policy banning personal or other objectionable use,
(2) does the company monitor the use of the employee's computer or e-mail,
(3) do third parties have a right of access to the computer or e-mails, and
(4) did the corporation notify the employee, or was the employee aware, of the use and monitoring policies.
While this exact issue is yet to be addressed in Texas, the Texas rules find a communication is confidential “if not intended to be disclosed to third persons.” Tex. R. Evid. 503(a)(5). When determining whether a communication is confidential, the surrounding circumstances are considered and the intent of the parties is considered. See Nat'l Sur. Corp. v. Dominguez, 715 S.W.2d 67, 69 (Tex. App.—Corpus Christi 1986, no writ). There must be a reasonable expectation that the communication is confidential between the client and his or her attorney. Therefore, if the company has a policy or practice allowing the employer access to its employees’ computers or emails, then it will be difficult to prove the communication was confidential.
Regardless of whether this issue is settled in Texas, an employee’s use of a company email to communicate with his or her personal attorney is not recommended given the trend nationwide. Moreover, if a client is using his or her company email or company computer to communicate with his or her personal lawyer, it would be wise to read the company handbook to determine whether there is any reasonable expectation of privacy. If the company has a policy allowing it to access its employees’ emails and computers, there would be little merit to arguing that the employee had any expectation of privacy. Therefore, to ensure that clients do not unintentionally waive their attorney-client privilege, clients should only communicate with their lawyer over personal, password protected emails using their personal computers.
 See the formal ABA opinion discussing this issue: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/11_459_nm_formal_opinion.authcheckdam.pdf