Dion Messer


VOL. XXIII • Fall 2004 • NO. 1 (table of contents)

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23 John Marshall J. of Comp. & Info. Law 75


As more attorneys now days use the e-mail as their primary source of communication with their clients, new issues arise regarding the potential threat to attorney-client communication privilege resulting from the standard and systematic employer monitoring of their employees e-mails.

Indeed employers monitor their employees’ computer use and in some cases terminate employees as result of this monitoring, for various reasons such as to increase of employee productivity and efficiency, protect their public image, prevent workplace harassment, protect their Intellectual Property assets and their network capacity. Given the systematic workplace monitoring but also the fact that contrary to the American Bar Association’s (ABA) assumption, e-mail is susceptible to interception and tampering but also to inadvertent disclosure, new ethical problems arise as to the issues of maintaining and protecting the privilege and confidentiality of e-mail communications between attorneys and clients.

This article explores the effect of workplace monitoring on attorney-client privilege by first providing historical background on the ABA’s position on e-mail communication between an attorney and his client and explaining some of the technology involved in e-mail transmission and workplace monitoring. It then analyzes the attorney-client privilege issues in light of workplace monitoring and the fact that e-mail is not regular mail by providing the statutory and judicial background. Finally the article proposes four different solutions to the problems posed.

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