Never Send Confidential Information to Your Divorce Lawyer from Your Employer-Provided Email Account

There are few things more important for an effective relationship between a client and their divorce attorney than their ability to communicate with each other in absolute confidence. This is known as attorney client privilege. The doctrine of attorney client privilege is so important that it is codified in New York Law. Specifically, Section 4503(a) of New York’s Civil Practice Law and Rules (CPLR) provides that no client may be compelled to disclose his or her communications with their attorney “unless the client waives the privilege”.

In 20 years as a New York divorce lawyer, I have encountered very few clients who were unaware that their communications with me were confidential. However, that vast majority of clients are unaware of how easy it is for them – even inadvertently – to waive (i.e., lose) the privilege or engage in communications that are not privileged at all.

In a nutshell, here’s the problem: nearly everyone uses email for a large portion of their communications. However, many people routinely use email accounts that are either: (a) email addresses provided to them by their employer (i.e., their work email account) or (b) email address that they share with other people, such as their children. When a client communicates with her lawyer via an email address that is freely accessible by a third party (such as their employer, coworkers or family member) they run the risk that communication will not be considered privileged. In practical terms, this means that the court may order the client or their email provider to provide a copy of the email to their spouse’s attorney.

Reported cases by New York courts regarding waiver of privilege in the context of divorce are fairly sparse. In one widely-reported decision, the Appellate Division held that as wife’s emails to her divorce attorney were not protected by attorney-client privilege because the parties’ children knew the password and regularly used the email address from which the client’s emails were sent. The decision was issued by New York’s largest appellate court – the Second Department, in the case Willis v. Willis.

Though not in the context of divorce, the famous Delaware Court of Chancery recently ruled that emails sent from work accounts were not privileged because the employer had a policy, which was expressly conveyed to employees, that emails were open to access by the employer’s staff. Nearly every corporate employer has a substantially similar policy.

There are several things that a divorce lawyer should do to minimize the risk that a client will engage in unprivileged communications. First and foremost, email communications between a client and his or her divorce attorney should be limited. In my office, I encourage clients to communicate with my by telephone, rather than email or text message. The reason for this extends beyond the issue of privilege. I have encountered too many clients whose spouses continued to have access to the client’s email account – even months after the client assured me that they had changed their passwords.

A second (though less secure) option is for the client to establish a new email account (usually a gmail account) solely for the purpose of communicating with their divorce lawyer.

In any event, I instruct all of my clients to never send me any email from the employer-issued email accounts. I also instruct all of my clients to immediately change all of their passwords to all of their email accounts, electronic devices, social networking sites, financial accounts, and basically anything else. The bottom line: privacy is an increasingly rare commodity. However, it is an absolutely essential commodity for effective relationships between divorce lawyers and their clients.

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