Schneider Mitola, Managing Partner
Marc H. Schneider
The client’s tale. This is more of a warning than a tale, and to prevent it from turning into a dark reality, take note: the use of work e-mail accounts can be very dangerous! E-mail communications between board members and attorneys are not always privileged. As such, use of e-mails to discuss important matters and decisions can cause a board’s decision to be challenged and/or expose a cooperative, condominium, or homeowners’ association’s liability. The general rule regarding whether an e-mail will be deemed an attorney-client privileged communication is whether the e-mail 1) provides legal advice from an attorney; 2) seeks legal advice from an attorney; or 3) discusses a specific legal approach for a given matter.
However, even if an e-mail meets any of these requirements, there is still a circumstance where e-mail may be unprotected. Sending your e-mail by using your work e-mail account may cause an otherwise privileged e-mail to lose its attorney-client privilege protection. Most employers have office policies, which provide that any e-mails sent via the employee’s work account are the property of the employer and subject to monitoring by the employer. In that regard, the courts have held that under these circumstances an e-mail from a board member to the attorney will not be protected by attorney-client privilege.
In a recent case, for example, an employer’s electronic communications policy prohibited personal use of the employer’s e-mail system and stated that the employer reserved the right to monitor, access, and disclose communications transmitted on the employer’s e-mail server at any time without prior notice. The court held that an e-mail sent on the employer’s e-mail server would not be protected by attorney-client privilege where 1) the employer maintains a policy banning personal use; 2) the employer monitors the use of the employee’s computer or e-mails; 3) third parties have a right to access the computer or e-mails; and 4) the employer notifies the employee or the employee is aware of the policy.
However, the courts have held that when an employee sent to her attorney an e-mail from the employer’s computer but from a personal e-mail address, the e-mail was protected since the employee took reasonable precautions to protect privacy by using the personal e-mail account, among other reasons.
The lawyer’s take. If your employer maintains a policy like the one described here, do not use your work e-mail address for board matters! The best way around e-mail risks is e-mail abstinence. This will ensure that you won’t need to worry about where the e-mail is coming from or whether the substance satisfies the attorney-client privilege test in the first instance. Conduct in-person board meetings for discussions and decision-making. If you must communicate via e-mail, make sure you use a private password-protected e-mail account and that no one else has access to it.
Case closed. Whenever possible, board members should always attempt to communicate via telephone or in person with each other and with their attorney, especially when discussing the specifics of a particular matter. General e-mails that do not discuss matters are typically acceptable (such as “what time and date are we meeting?”). However, always use caution and read what you write before you hit “send.” Remember, e-mails are like toothpaste: once out of the tube, you can’t stick it back in! Moreover, do not simply copy your attorney on an e-mail and have an expectation that the e-mail cannot be obtained in a lawsuit or used against the community association or board member.