What to Do if You find Attorney-Client E-mail—Simple Rule

Woods is a shareholder in the Greenville, South Carolina office of law firm Ogletree Deakins, Nash, Smoak & Stewart, PC. His remarks came at BLR’s National Employment Law Update, held recently in Las Vegas. Here are the takeaways that Woods offers based on case law at this point:

Computer Monitoring and Attorney-Client E-mail

Regarding attorney-client privilege and e-mails from company equipment, Woods advises:

• If an employee uses the company e-mail account, some cases (though not all) hold that employee waives attorney client privilege and employer can review attorney client e-mails.
• If the employee sends e-mails using personal email account but company equipment, the answer will depend on employer’s policy and practice.

Very Simple Rule

The solution is simple, says Woods. Tell all managers: When you come across attorney-client communications, call HR, your legal department, or outside counsel! Do not otherwise share or disseminate the e-mails.

Notice and Training are Critical

Conduct annual training for employees on your technology policy, Woods recommends. (According to AMA-ePolicy Institute Survey, Woods says, only 27% of employers provide such training.)

You can include this training with your non-harassment training. Be sure to have employees sign off on training to ensure that there is awareness of the policy.

Be Consistent

Make sure that your managers are not making oral statements contrary to the current written policy, Woods says.

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Technology Policy Basics

Woods suggests HR managers consider the following for their technology policies:

• Develop a technology policy or procedure as part of your handbook or policy manual or as a stand-alone document.
• Get signed consent from each employee
• Be sure the policy covers all electronic resources (company e-mail systems, computers, phones, Blackberry and all other smartphones, copiers, pagers, etc.)
• To keep pace with rapidly changing technology, include catch-all for future electronic resources (… and all other electronic resources.)
• Note that systems and resources are the property of the company.
• State that there is no reasonable expectation of privacy.
• Select a usage option:
1. Business purposes only.
2. Primary purpose must be business; personal use must not be excessive
• Lawfully ban solicitation (you should prohibit all commercial endeavors; however, you may allow a limited number of charities)
• Prohibit mass/blanket e-mails
• Consider prohibiting access to personal Internet-based email via company electronic resources e.g., gmail, yahoo mail, etc.
• Address recovery of hard drive items as a result of employee’s activities (Internet, etc.)
• Prohibit unlawful harassment, discrimination & retaliation
• Address security provisions passwords, etc.
• Include limitations on copyright/trademark violations, etc.

Writing policies—surely an essential function on your job description. As a matter of fact, writing the whole company’s jobs descriptions is surely essential function. If only they were all well-written, attorney-checked, and up-to-date. Actually, they are.

Technology Reaches HR’s Least-Liked Responsibility

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