Amanda DeMatteis: Hi, Josh.
Josh Goodbaum: Hi, Amanda. What are we talking about today?
DeMatteis: I thought I’d give you a hypothetical and then you can answer it for our viewers. I’m an employee and I am having a difficult situation at work. I decide I need to retain the advice of an employment lawyer. I could just use my work laptop and my work email to contact an employment lawyer. That’s no problem, right?
Goodbaum: Oh, Amanda, please do not email me (your employment lawyer) from your work email on your work laptop, especially when you want to complain about the employer who has provided you with that email and laptop.
Why shouldn’t you do that? Because you don’t have a guarantee of confidentiality. Your employer almost certainly reserves the right to monitor everything that happens on your work email, whether it has to do with work or not, and likewise, almost certainly reserves the right to monitor everything you do on any technology they provide to you, whether or not it has to do with work; that could be your laptop, your tablet, your smartphone, anything else.
And not only are these communications not confidential because your employer potentially could see them, but even more importantly from my perspective as your potential lawyer, they’re not privileged.
Why is that? Well, you’ve probably heard of the attorney-client privilege. (I know you have, Amanda, because you’re a lawyer, but speaking to the folks out there who are not….) The attorney-client privilege requires, among other things, that the party making the communication has taken reasonable efforts to ensure the confidentiality of the communication. If you engage in communication that some third party – that’s anybody else who’s not the lawyer or client – could see, in all likelihood that communication is not privileged. And that’s a real problem for communications with your lawyer. You want to have only confidential, privileged communications with your lawyer.
So, if you want to have confidential communications with anyone – especially your lawyer who’s going to be potentially adverse to your employer – you really don’t want to do it using your work email and/or on your work computer.
So, that’s the bad news.
The good news is this problem is really easy to fix. It’s just not that difficult. There are many email services that provide free email addresses. Open a Gmail account, a Y-Mail, a Hotmail, something else, so you can communicate confidentially and freely. And likewise, don’t use your work laptop. Instead, go buy a cheap tablet, buy a new phone, buy a new laptop, maybe use a spouse’s laptop. That way you can be more assured that the communication you’re having with that employment lawyer is confidential and likely privileged without your employer snooping over your shoulder.
DeMatteis: Really good advice. Thank you for answering our hypothetical, Josh. We hope it was helpful for you. Take care, and we’ll see you next time.