While conducting research, I recently came across yet another case, United States v. Finazzo, 2017 U.S. App. LEXIS 3972 (2d Cir. Mar. 7, 2017), in which the Second Circuit (federal appeals court covering New York) held that an employee’s emails with his personal attorney on his employer’s email system were not privileged by the attorney-client privilege. This is the third time I have written about New York cases addressing the waiver of attorney-client privilege when the communications between the client and attorney took place on an employer’s email system or employer-issued computer.
In this case, the defendant, a merchandising executive at Aéropostale, Inc., was convicted of a kickback scheme in which he caused Aéropostale to use South Bay as a supplier of certain apparel for retail sale by Aéropostale, in exchange for secret payments to the defendant of portions of South Bay’s profits. At trial, the government introduced an email between the defendant and his personal attorney regarding the defendant’s will, in which the attorney listed assets including several South Bay entities. The defendant appealed the conviction and argued that he is entitled to a new trial because “the government knowingly used misappropriated attorney-client privileged information” when it used this email.
The attorney-client privilege protects communications (1) between a client and his or her attorney (2) that are intended to be, and in fact were, kept confidential (3) for the purpose of obtaining or providing legal advice. Thus, the question of whether the privilege applies involves a determination of whether the defendant treated the communications in such a careless manner as to negate his intent to keep them confidential.
The Second Circuit held that the defendant waived the attorney-client privilege as to this email. The reason for this, in part, was because the Employee Handbook contained a policy specifically stating that employees “should have no expectation of privacy when using Company Systems.” In addition, the policy further stated that Aéropostale may “monitor, access, delete or disclose” all use of Company Systems without permission, and defined “Company Systems” to include “internal and external email.” Moreover, the defendant even signed forms acknowledging that he had read the Employee Handbook containing these policies and was “familiar with the contents of the Employee Handbook.”
Despite the defendant’s “familiarity with Aéropostale’s computer policies, he used his Aéropostale email address to send and receive emails with his attorney. … Other than a self-serving affidavit, there is no evidence that [the defendant] made any effort to preserve the confidentiality of these communications.”
Accordingly, I must reiterate the importance of never communicating with your personal attorney through your employer’s email system or employer-issued computer and instead always use a personal email account on a personal computer for these communications. If you have any questions concerning the attorney-client privilege and/or how it applies to you, it is smart to consult with a New York employment attorney before utilizing your employer’s email system or employer-issued computer to communicate with your personal attorney.