Several courts have held that privilege may be waived when a client sends an email to counsel on the client’s business network, where the business has notified the employee that the network may be monitored or accessed by the employer, and that employees should have no expectation of privacy in communications sent or received on that network. But what of communications that flow in the opposite direction, from counsel to a client’s email address on such a network? The Eastern District of New York, in United States v. Finazzo, 2013 WL 619572 (E.D.N.Y., Feb. 19, 2013) has taken the position that an attorney waives privilege when he or she sends an email to a client at the client’s work email address. The ethical and processional liability implications in an age in which counsel communicate with clients on email with some regularity, are alarming.
Christopher Finazzo was indicted for participation in a scheme to defraud his employer Aeropostale by, among other things, failing to disclose his interests in other companies. During an investigation an email from Finazzo’s personal trusts and estates attorney, setting forth a list of Finazzo’s assets for the purposes of preparing a will, was discovered. One of the assets in the email was an interest in a South Bay Apparel, a company that was doing business with Aeropostale. Finazzo moved in limine to exclude the email from evidence at trial, claiming that he never agreed to the transmission of emails by his attorney to Finazzo’s work email address. The court denied the motion, and Finazzo was convicted.
In keeping with common corporate practice, Finazzo had signed an acknowledgement of Aeropostale’s technology policy, which indicated that employees should have no expectation of privacy in communications on the corporate network, and that information on the network “may be monitored, accessed, deleted or disclosed” by the company. The court held that the burden of proving the existence of privilege was Finazzo’s, and he failed to meet the four-factor standard In re Asia Global Crossing, 322 B.R. 247, 257 (Bankr. S.D.N.Y. 2005), because third parties had access to communications on the subject system, the company had advised Finazzo of this access, and Finazzo had acknowledged that he was aware of this policy. “Most courts,” Judge Mauskopf, wrote in Finazzo, “Have concluded that the reservation of such a right to review destroys any reasonable expectation of privacy,” and without that expectation privilege is waived, regardless of whether the email is sent or received by the client. Judge Mauskopf citied decisions indicating that it is appropriate for a court to consider whether otherwise privileged communications “were treated in such a careless manner as to negate any intention to keep them confidential.”
The implication that the attorney may have violated the duty to maintain client confidences is unstated but nonetheless clear. It is not clear from the decision whether the email was actually admitted into evidence and, if so, whether it played a role in the verdict. Professional liability questions may have arisen, as well as exposure to discipline for violation of rules on protection of client confidentiality, if the email were admitted and played a role in the verdict.