Legal Ethics

NJ High Court: Privilege Protects Worker's E-Mail Exchanges with Lawyer on Company Laptop


The New Jersey Supreme Court has ruled that attorney-client privilege protects e-mail discussing a possible employment lawsuit that was transmitted on the corporate laptop of the would-be plaintiff.

Sending and receiving personal, password-protected e-mails on a corporate laptop did not eliminate the attorney-client privilege that protected them, the court ruled in its opinion (PDF). The Legal Profession Blog, the New Jersey Star-Ledger and the New Jersey Law Journal (sub. req.) covered the ruling.

The opinion could influence workplace privacy rules across the country, lawyers told the Star-Ledger.

Lawyers from the Newark law firm of Sills Cummis & Gross in Newark had read the e-mail after the employee, Marina Stengart, quit her job as a nursing manager, filed suit and turned in her computer. Sills Cummis represented Stengart’s employer, a home health care company called the Loving Care Agency. The law firm found the e-mails during a forensic analysis of the laptop.

The court said Sills Cummis violated ethics rules when lawyers read the e-mails and failed to promptly notify Stengart it had retrieved them, but there was no bad faith by the law firm.

The opinion said the Loving Care’s policy on the privacy of e-mails sent on the laptop was ambiguous. But, the court said, “even a more clearly written company manual—that is, a policy that banned all personal computer use and provided unambiguous notice that an employer could retrieve and read an employee’s attorney-client communications, if accessed on a personal, password-protected e-mail account using the company’s computer system—would not be enforceable.”

The court instructed a lower court to determine whether Sills Cummis should be disqualified from representing the Loving Care Agency.

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