Most competent lawyers who represent employees in disputes with their employers warn their clients that communications through the employer's email system subject those messages to possible review by the employer. In July, the North Carolina Bar issued a proposed Formal Ethics Opinion with respect to such attorney-client communications. This Opinion affects how in-house and outside legal counsel access and use such communications in defending the company.

The Opinion poses a number of hypothetical scenarios. The first confirms the ethical duty of the lawyer representing the employee to warn his or her client that communicating through the employer's system subjects their emails to disclosure to the employer. The Bar recommends that the lawyer use personal accounts or alternative means of communicating with the client.
The subsequent hypotheticals address access to the emails by attorneys representing the employer. The lawyer cannot advise the employer to search its emails for such communications unless he or she has researched and confirmed that such inquiry will not violate discovery, privacy or attorney-client privilege rules. The Bar stated that attorney-client privilege applies to such communications made through the company's email system unless the employer has a clear and unambiguous policy and practice regarding email usage and monitoring. One factor used in making this determination is whether the employer regularly accesses employee email communications for monitoring purposes.

Attorneys representing employers should conduct a thorough and documented analysis of these factors before concluding that the employee has waived the attorney-client privilege. Employers should review their electronic communication policies to make sure that they unambiguously remove any expectation of employee privacy when using the company's systems. The proposed Opinion also states that attorneys may not advise employers to change passwords or take other steps to retrieve personal account emails that may be accessed through the office computer system.

The North Carolina Bar is currently accepting comments on the proposed Opinion. If finalized, attorneys found to have violated its terms could be subject to sanctions and disciplinary action.