In general, your communications with an attorney about your case (or potential case) are confidential and privileged (Cal. Evidence Code § 954). The client (or potential client) is the owner of the privilege. This means that no one can learn the details of your communications with your lawyer without your consent, not even with a subpoena. But even though the law gives you this protection, I have always warned potential clients to never contact me through employer-owned computers or phones.
I do this because I think of a woman named Gina Holmes, the plaintiff in a case decided by the Third District of California. That court held that Ms. Holmes had no interest in privacy in communications with an attorney, because she had used her work computer to email the attorney, and because she had a rather unfortunate employment agreement that may be similar to the one you currently work under. Holmes v. Petrovich Development Company (2011), 191 Cal. App. 4th 1047.
Ms. Holmes’ lawsuit alleged sexual harassment, retaliation, wrongful termination, privacy rights violations, and intentional infliction of emotional distress. But before she filed the lawsuit, and before she had even left her job, she reached out to an attorney, someone she knew and trusted, for help, for help to understand what her legal options were.
So let’s stop for a moment—imagine being sexually harassed at work, having your privacy violated, or suffering emotional damage from conditions at your workplace. Imagine that you want to contact a lawyer about your options. Doesn’t this feel like it would be a private conversation? Doesn’t it feel wrong that your boss, or potentially even the people responsible for your harm, could look at what you’ve written, or perhaps even listen in on this conversation?
The Third District says your feelings, at least in Holmes’ case, would be wrong. Holmes had a specific language in the employment agreement that when using the company’s resources: “e-mail is not private communication . . .” and that allowed the company to “inspect all files or messages . . . at any time for any reason at its discretion.”
This may now be a good time to review your own employment agreement. You might be surprised to find that you have similar language that you signed off on when taking your current job. This language has become common in work agreements. Don’t feel bad if it’s in yours. It is mostly overlooked, because of the imbalance of power at the hiring stage: an employer may have any number of people it can hire, whereas the person looking for the job is commonly in some urgent need of an income and will quickly sign whatever he or she needs to sign to get it.
If you’re considering contacting any attorney (including me) about any matter at all, please do NOT use a phone or computer provided by your workplace. Please use only your own personal cell phone, computer, or tablet (as of this writing, the courts haven’t ruled on voice-activated “artificial intelligence,” such as Amazon’s Alexa).
When there’s a workplace issue, such as harassment, it is tempting to shoot off an email (or contact form) right from your computer station: emotions and energy are high, the facts are fresh in your mind, and the “smoking gun” documents you need to show your lawyer are right there on the work computer. I repeat: don’t do it. Use only your own home or personal devices. And if you need to show your attorney documents from your workplace to prove your case, either send them from your own personal or home devices (if you can legally do so) or contact the attorney from your personal device and figure out a way to access it together.