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How an Email to Your Attorney Can Hurt your Divorce Case

BY IN Divorce

On June 11, 2020, the Michigan Court of Appeals issued a published opinion in the matter of Stavale v Stavale.  David Stavale and his attorney emailed each other about the case, and those emails included confidential information.  Michigan law provides that whatever an attorney discusses with his or her client is considered attorney-client privileged information, and these conversations, either orally or in writing, will remain confidential.  The information cannot be subpoenaed or reviewed by the opposing party and the court.  Attorney-client privilege encourages clients to be honest with their attorney so that the attorney can represent the client knowing all facts, including any potentially bad facts.

The problem for David Stavale is that he emailed with his attorney using his employer’s email account.  David’s employer had a handbook that provided that electronic communications were for business use, and he had “no legitimate and/or reasonable expectation of privacy regarding system usage.  As a result, you should not use the company’s electronic communication systems to discuss or correspond about anything personal, particularly sensitive, confidential, or privileged personal communications to outside parties”.  The employer’s handbook also provided that the employer could access and review the emails. 

David’s wife, Candice, subpoenaed David’s work emails from his employer. David filed a Motion to Quash the subpoena (a request to void the subpoena so that the employer would not have to produce the documents).  David claimed that his work email account included attorney-client privileged information.  Candice argued that David could not expect that the emails were private because his company’s handbook told him that he could not expect privacy. 

The trial court judge ruled that David could not expect his work email to be private and allowed the employer to release the emails to Candice and her attorney.  David appealed the decision.

The Court of Appeals provided a lengthy and thorough opinion outlining emails between attorney and client using an employer’s email account and concluded that normally emails between attorney and client would be not subject to a subpoena because of the attorney-client privilege.  The Court of Appeals then went on and reviewed several federal and other state’s cases.  In a nutshell, the Court of Appeals instructs the Michigan trial courts to consider “(1) whether the employer maintains a policy with respect to the use of those systems and what that policy entails, and (2) whether the employee was ever notified or made aware of the employer’s policies and practices with respect to computer privacy and monitoring.”

In this case, neither David nor Candace pointed out to the trial court whether David ever knew about this handbook with the email policy.  For that reason, the Court of Appeals instructed the trial court to review this matter again.

Practically speaking, there is a lesson to be learned from this case.  Do not use your employer’s email to correspond with your attorney.   Attorneys quite often subpoena work emails, and even if you have a strong case to prevent disclosure of your attorney-client privileged emails, you must spend attorney fees on protecting the attorney-client privilege.  In the case of Candance and David, David undoubtedly spent tens of thousands of dollars to litigate this at the trial court and at the Court of Appeals. 

Most employers have a policy that prohibits personal use of the company’s computers and email account. Logically most employers provide this policy to the employee, and they may even require the employee to sign a receipt that they received the handbook or policies.  For these reasons, it is always best to avoid using work emails to correspond with an attorney regarding a personal matter.

Lastly, this case dealt with work email.  Most employers’ policies also include employees’ use of the company telephones for private calls. Some employers audio record phone calls.  In a contentious divorce or custody case, you could expect the opposing party to subpoena audio recordings of phone calls and encounter similar problems and litigation.

If you are using a company provided email account to connect with your attorney:  stop!  Use a personal account or, better yet, create a new account with a new secure password.  If you have questions about your divorce, give our divorce attorneys a call at 616-291-0053 and let us answer your questions.