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Confidentiality & Divorce - Using Work Email

During a Rhode Island divorce, lawyers and clients may communicate by email. Clients should not use work email to communicate with a lawyer.

In a criminal matter, the U.S. Court of Appeals for the Fourth Circuit held on December 13, 2012 that emails a defendant sent to his wife were properly admitted into evidence and not protected by a marital "privilege".

The unanimous Court's reasoning is instructive. The Court cited a 1934 U.S. Supreme Court case (Wolfle vs. United States) where a defendant sent a letter to his wife using his a stenographer. He tried to keep the letter out of the evidence by claiming a marital privilege. Since the dictation went through a third person - the stenographer - the Court ruled that it lost its quality as privileged. Communications made between a lawyer and client are also "privileged", but when a third party is present, the communication loses it's privileged status as well. The stenographer was a third party and therefore voided the privilege of the communication.

The 4th Circuit Court stated that "email has become the modern stenographer" and stated that if spouses wished to communicate privately, they can and should do so "without using a work email account on an office computer." This is especially true if the employer has a policy in place about employee's use of office email and that there is no expectation of privacy when office email is used by an employee.  The same reasoning could be applied to communication between a lawyer and client. 

Using an office computer, smartphone or email does not carry with it the expectation of privacy. Therefore, an employee uses it with an expectation that it may be read by a third party.

Instead of using office email or an office computer, protect your communication with your lawyer by creating a new email address and access it through a private computer or a non-employer provided smartphone.

At the Rhode Island law office of Steven J. Hirsch, we warn our divorce clients about using a work email and work computers. Developing a new email address with a new password insures that spouses, friends, or other family members cannot see your sensitive communication .

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