The use of personal e-mail accounts at work may be acceptable to many companies, but that doesn’t mean the bosses aren’t looking — even when the conversations are between an employee and her lawyer. The state Supreme Court yesterday considered whether an employee who corresponded with her lawyer through her personal e-mail account on a company-owned laptop was protected by the attorney-client privilege. “When you have an e-mail/computer-use policy similar to the one that you have in this case, it’s as if the employer is looking over your shoulder every time you enter information on your computer,” said Peter G. Verniero, who argued the case for the woman’s employer, nursing services provider Loving Care Agency Inc.
Verniero said Loving Care Agency, based in Ridgefield Park, had reserved the right to look at “all matters on the company’s media systems” in its computer policy — including personal e-mails to an employee’s lawyer. He said the policy did allow occasional use of personal e-mail sites, but the company reserved the right to review any information on its equipment.
Loving Care accessed e-mails between Bergen County resident Marina Stengart, who worked as an executive director of nursing, and her lawyer, Peter Frazza, after she filed suit against the company, alleging harassment and ethnic discrimination under the Law Against Discrimination. That case is pending and won’t resume until the suit before the Supreme Court is resolved.
The case the state’s highest court is considering centers on whether the company’s computer policy carries more weight than lawyer codes of professional conduct, which govern attorney-client privileges.
“Our first obligation as attorneys of this state are to the rules of professional conduct. And I take those very seriously,” said Frazza, who lamented his e-mails had not been kept private between him and his client.
Advocates for corporations in the state say the court’s ultimate decision could affect how companies create and enforce policies regarding electronic messages, including prohibiting personal e-mail sites at work.
“We think it’s going to have a chilling effect on that relationship. It’s going to make it difficult for employers to be able to continue to provide employees with the opportunity to send personal e-mails in the workplace,” said Mark Saloman, a lawyer representing the Employers Association of New Jersey, which is participating in the case.
The state’s bar association, which also is participating in the case, said it’s not in a company’s best interest to ban personal use of its computers.
“Many employers now concede that a zero-tolerance policy that prohibits non-business use of workplace communication equipment and access is unworkable and unwelcome,” the association wrote in its brief.
A state appellate court earlier this year ruled the e-mails were protected by attorney-client privilege.
“We reject the employer’s claimed right to rummage through and retain the employee’s e-mails to her attorney,” Judge Clarkson Fisher wrote for the court. Star Ledger.