The attorney-client privilege is the oldest privilege recognized in Tennessee. It is intended to protect communications between an attorney and his client, relating to the matter for which the client sought legal advice, from being discovered by the opposing party or any other third party. The purpose is to provide for full and frank communications between the attorney and client, without any fear that they will be compelled to disclose those communications to another person.

For a client to receive the benefit of this privilege, the communication must involve the subject matter of the representation, and it must be made with the intent that the communication be confidential. If a client divulges the communication to another person, he or she has expressly waived the attorney-client privilege with respect to that information.

Courts have recently begun addressing how e-mail communications will be handled with regard to the attorney-client privilege.

In Scott v. Beth Israel Medical Center, Inc., a New York plaintiff filed lawsuit against his former employer for wrongful termination. The employee had correspondence with his attorney through the company e-mail system. The employer’s e-mail policy, which was included in the company policy and procedural manual, stated that hospital employees had “no personal privacy right in any material created, received, saved, or sent” when using the company computer system. The policy also stated that the employer reserved the “right to access and disclose such material at any time without prior notice.” The New York court found that the plaintiff had both actual and constructive knowledge of the company e-mail policy. The attorney-client privileged was waived.

In Long v. Maruben Am. Corp., employees filed a civil rights suit against their former employer. Plaintiffs used computers that were assigned to them by their employer to send and receive e-mail messages to each other and their attorney. However, these employees did not use company e-mail, but they instead used their own private, password locked e-mail accounts for the communications. The employee handbook cautioned employees that “all communications and information transmitted by, received from, created or stored” on the company computer was property of the company. The handbook went further to prohibit personal use of the computers, and it gave the company a right to monitor its systems. These employees waived their attorney-client privilege.

A recent Tennessee case, Forrest v. Lewis, established that e-mail communications were not protected when sent through a company system. The Court held that the privilege was lost, and the e-mails recovered could be used by the defendants to support their case.

All clients, regardless of the type of case, should be aware that there is a risk in sending or receiving electronic communications on a computer, mobile phone, tablet, other electronic device or e-mail account when there is a risk of a third party gaining access to that communication. Be sure you never communication with your attorney on an employer computer, public computer or borrowed computer (or other electronic device).

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