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Michigan Court of Appeals clarifies attorney-client privilege

It is likely that all of our Ann Arbor blog readers have seen at least one courtroom drama on TV or in movies in which attorney-client privilege played a prominent role. While the concept is a familiar one, details of what is and is not privileged communication between a lawyer and client likely remain elusive.

While the Michigan Court of Appeals recently clarified attorney-client privileged communication in family law matters, there are some suggestions near the end of this post to make matters even clearer.

The question in the case (Stavale v Stavale) was whether email sent from an employer-provided email account to a family law attorney has the expectation of privacy required to make communication privileged. In other words, if you send your lawyer an email from work about your divorce, are the contents of your email confidential between you and your attorney, or can your spouse (or former spouse), gain access to it?

In the case, a woman had subpoenaed her husband's employer for copies of emails between him and his attorney that went through the employer-supplied email account. The trial court sided with the wife, denying the husband's request to reject the subpoena.

However, the Court of Appeals vacated the trial court's decision, sending the issue back for consideration within the context of a new rule.

The Appeals court created a short list to consider when there are questions about the required expectation of privacy for attorney-client privilege in emails sent in an employer-provided email system:

  • Does the employer have a policy regarding privacy or monitoring or restricting employee use of the email system?
  • Was the employee made aware of any policy restrictions?
  • In some situations, it might be relevant to consider whether the employer actually enforced an existing policy regarding privacy, monitoring or other restrictions.

In order to avoid going to court in a similar dispute, consider the following suggestions:

  • Only send email to your family law attorney through your personal email account (not an account provided by your employer)
  • Create a brand-new private account specifically for sending and receiving emails to and from your lawyer (do not create the account on a device you share with your estranged spouse)
  • Don't keep legal documents in an employer-provided cloud or storage system (or a system shared with your estranged spouse)

If you store legal documents or emails on a device or system or network that doesn't carry the required expectation of privacy, you might one day be required to share those items with your estranged spouse.

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