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The author is with Fordham University School of Law, New York City.
You are defending a company accused of employment discrimination. The company has uncovered some very helpful new documents. It turns out that when the company fired the plaintiff, it confiscated her company-issued laptop and sent it to a computer forensic expert to recover the files. The expert recovered a lot, including emails that the plaintiff sent through her personal, web-based email account—the password protection was no obstacle. Those emails between the plaintiff and her lawyer would be useful in the course of discovery. Now that the emails are in your hands, what is your reaction? “Gentlemen don’t read each other’s emails” or “I’m gonna milk ’em for all they’re worth”?
Perhaps your first thought is “What’s the best way to stay out of trouble?” But there is seemingly no easy way out. If you exploit the documents, you may be violating the other side’s confidentiality rights. If you don’t, you may be denying your client the zealous representation to which it is entitled.
A prominent New Jersey law firm faced this dilemma in a case “present[ing] novel questions,” according to its state’s high court in Stengart v. Loving Care Agency, Inc., 201 N.J. 300, 307 (2010). The way out was murky. At least intuitively, whether the firm could exploit the adverse party’s emails depended on whether the communications were privileged. That in turn partly depended on the nature of the employer’s internal policy about computer use and how well the policy was communicated to the plaintiff. It also depended on what legal standard a court would apply to the privilege question and how the court would apply it.
The law firm guessed wrong. It used the emails in discovery. The state supreme court concluded, based on several amicus briefs and its own analysis, that the emails were privileged. This conclusion was not self-evident, given the employer’s proprietary right to the laptop on which, evidently without the employee’s knowledge, the emails she had taken pains to keep private were imaged. But the employee’s expectation that the emails would be kept private was reasonable, in the court’s view, and sufficient to justify extending the protection of the attorney-client privilege. The opinion is an interesting one and is well worth reading for what it says about how courts may adapt the privilege in the context of new technology.
But what of the law firm? It took the wrong path, the court said. It should have promptly notified opposing counsel about the emails. And what is more, although there was nothing to suggest the firm acted in bad faith, the trial court could nonetheless sanction it.
This was a tough, perhaps unfair, blow. How was the firm supposed to know to give notice? Not from the Rules of Professional Conduct. New Jersey’s version of Rule 4.4(b), like the ABA Model Rule from which it was adapted, requires a lawyer to notify the sender of an “inadvertently sent” document. Although the court held the rule to be applicable, it was far from obvious that the emails between the plaintiff and her lawyer were sent “inadvertently.” (See ABA Commision on Ethics and Professional Responsilibity, Formal Opinion 11-460 (2011), finding Model Rule 4.4 (b) inapplicable.) And not from the case law. The most relevant decision, decided across the river a few years earlier, went the other way. In Scott v. Beth Israel Medical Center, Inc., 847 N.Y.S.2d 436 (Sup. Ct. 2007), aff’d, 850 N.Y.S.2d 81 (App. Div. 2008), the New York courts concluded under different factual circumstances that an employer had every right to exploit emails between an employee and his lawyer that were recovered from the employer’s computer systems. The New York courts breathed nary a word about any obligation on the part of the employer’s lawyer to notify the other side that its communications had been captured.
The lawyer’s dilemma here seems like nothing new. It is a variation on the age-old conflict between fairness to the opposing party and loyalty to one’s client. The problem, though, is that there is no universal resolution of problems posing this conflict. The right answer depends on the context. And here the context is brand new, a product of developments in Internet technology and telecommunications. Helping lawyers navigate these developments and the ethical problems to which they give rise is one of the jobs of an ABA commission called “Ethics 20/20,” which has been charged with examining professional standards in light of globalization and changing technology. It has a working group specifically aimed at client confidentiality and lawyers’ use of technology. While the commission figures out what to do, lawyers will have to navigate as best they can and hope that when they act in good faith, most courts will cut them some slack.