In Stengart v. Loving Care Agency, 990 A.2d 650 (N.J. 2010), the employer's lawyers mined the hard drive of a company-owned laptop and read password protected emails between a former employee and her lawyer. The Supreme Court of New Jersey held the plaintiff former employee's reasonable privacy expectations were violated and that the employer’s lawyers had violated the state’s version of RPC 4.4(b)4 by failing to notify the employee’s counsel that the employer had downloaded and intended to use the messages in litigation. The ABA's model rules address only inadvertent receipt of email communications. In Formal Opinion 11-460 their Standing Committee on Ethics and Professional Responsibility addresses the obligations of employers' lawyers and gives cautionary advice - suggesting the matter be presented to a court before a lawyer reads such communications. - GWC
Duty when Lawyer Receives Copies of a Third Party’s E-mail Communications with Counsel
"When an employer’s lawyer receives copies of an employee’s private communications with counsel, which the employer located in the employee’s business e-mail file or on the employee’s workplace computer or other device, neither Rule 4.4(b) nor any other Rule requires the employer’s lawyer to notify opposing counsel of the receipt of the communications. However, court decisions, civil procedure rules, or other law may impose such a notification duty, which a lawyer may then be subject to discipline for violating. If the law governing potential disclosure is unclear, Rule 1.6(b)(6) allows the employer’s lawyer to disclose that the employer has retrieved the employee’s attorney-client e-mail communications to the extent the lawyer reasonably believes it is necessary to do so to comply with the relevant law. If no law can reasonably be read as establishing a notification obligation, however, then the decision whether to give notice must be made by the employer-client, and the employer’s lawyer must explain the implications of disclosure, and the available alternatives, as necessary to enable the employer to make an informed decision. "
Duty when Lawyer Receives Copies of a Third Party’s E-mail Communications with Counsel
"When an employer’s lawyer receives copies of an employee’s private communications with counsel, which the employer located in the employee’s business e-mail file or on the employee’s workplace computer or other device, neither Rule 4.4(b) nor any other Rule requires the employer’s lawyer to notify opposing counsel of the receipt of the communications. However, court decisions, civil procedure rules, or other law may impose such a notification duty, which a lawyer may then be subject to discipline for violating. If the law governing potential disclosure is unclear, Rule 1.6(b)(6) allows the employer’s lawyer to disclose that the employer has retrieved the employee’s attorney-client e-mail communications to the extent the lawyer reasonably believes it is necessary to do so to comply with the relevant law. If no law can reasonably be read as establishing a notification obligation, however, then the decision whether to give notice must be made by the employer-client, and the employer’s lawyer must explain the implications of disclosure, and the available alternatives, as necessary to enable the employer to make an informed decision. "
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