Love affairs are tantalizing, but dangerous. I know because I have been involved in such a love affair for well over a decade. The object of my affection is not a person. It is a thing. And what a lovely thing it is: Email!
Email has revolutionized my New York personal injury practice. Before email, I would get back to the office from a day in court and have dozens of phone calls to return, and to make. Ever since I got email on my smart phone (about 10 years ago?) that hardly ever happens. My smart phone is always on me and I can read and respond to my clients’ inquiries while standing in the Deli line or while sitting in court waiting to argue my case. What a time saver!
Email, I love you.
But wait. Danger lurks in every great love affair. This one is no different. What danger you ask?
Hold that question. We’ll get back to it in a minute. Let’s back up and discuss something called “the attorney-client privilege”.
Basically, any communication between a client and his lawyer is “privileged” (that means no one can make them reveal what they said) as long as both the client and the lawyer were communicating under circumstances where each had a “reasonable expectation of privacy”.
Thus, for example, if I scream out to my client on a crowded subway, “you know, your case sucks”, and he responds, “I know, but you’re such an awesome attorney you can win my case anyway!”, such a communication is not privileged. Our opponents in court can ask us all about that conversation and we have to tell them about it. In front of the jury! That’s because there is no way we had a “reasonable expectation of privacy” in that crowded subway.
The same communication, however, if done in a private room, is privileged. That is so even if the nosy neighbor in the room next door presses his ear up against our common wall and hears what was said. The conversation is protected by the attorney-client privilege because the client and lawyer both had a reasonable expectation of privacy (even if, unbeknownst to them, their privacy was violated).
So how does this affect my love affair with email? Just like with vocal conversations, client-attorney email communications are privileged as long as both my client and I had a reasonable expectation of privacy. But our courts have ruled that there is no such expectation of privacy if the email address my client is using can be accessed by others.
For example, if my client is emailing me from an email address issued to him by his employer and the employer can access those emails to monitor his work, then there is no expectation of privacy. Same result if other people in the client’s household share the client’s email address and can read his emails. In either case, the attorney-client “privilege” is destroyed, which means that we can be required to disclose those emails to the defendant and his lawyer in court. And some of those emails might be harmful to our case.
So yes, I love email. It was love at first sight! But just like with any other great love affair, one has to be careful.
So client, let’s be careful. I did my best to figure out early on in our relationship if your email situation provided us with a “reasonable expectation of privacy”. But if your email situation changes, please let me know. We need to keep our love affair private! It is a “privilege” we don’t want to lose!
Email me at: firstname.lastname@example.org I’d love to hear from you!
Syracuse NY Personal Injury Lawyers
Michaels & Smolak, P.C.