When is an email to your attorney not subject to the attorney-client privilege in Michigan? The Michigan Court of Appeals recently provided guidance that might surprise you. Specifically, the appellate court recently ruled that an email sent to his attorney by an individual going through a divorce may not be subject to the attorney-client privilege because it was sent from his company’s email account. This ruling is significant because it makes clear that emails sent by people to their attorneys with employers’ email systems/computers may not be privileged from discovery.
On June 11, 2020, the Michigan Court of Appeals decided Stavale v Stavale ___ Mich App ___; ___ NW2d ___ (2020) (Docket No. 349472; selected for publication). In Stavale, the parties were going through a divorce. Plaintiff Candice R. Stavale subpoenaed Defendant David Stavale’s work e-mail account, requesting e-mails sent by Mr. Stavale to his divorce lawyer. Id. at 1. Mr. Stavale asked the trial court quash the subpoenas to his employer, citing the attorney-client privilege. The trial court disagreed and ordered the production of the emails. Mr. Stavale sought leave for an interlocutory appeal. An interlocutory appeal is an appeal taken and heard before a case is tried/or subject to a final order. These types of appeals are only heard when the Michigan Court of Appeals agrees to hear them. Mr. Stavale’s interlocutory appeal was granted as to whether his emails were privileged.
In Stavale, Defendant David Stavale’s used his work email to communicate with his divorce lawyer. Mr. Stavale’s employer’s employee handbook explicitly stated that: “[u]sers have no legitimate and/or reasonable expectation of privacy regarding system usage” with regard to company computers, email accounts and other communications systems. Stavale, supra, p 7. However, Mr. Stavale’s company also had never accessed Mr. Stavale’s work email, had “never had a desire or need to do so,” and that the employer did not have Mr. Stavale’s password, which was required to access the emails. Id. By the time the issue got to the Michigan Court of Appeals, it was not clear whether Mr. Stavale was aware of the company policy or had read the employee handbook. Id. at 8.
The Attorney-Client Privilege in Michigan Generally
Under Michigan law, “[t]he attorney-client privilege attaches to communications made by a client to an attorney acting as a legal adviser and made for the purpose of obtaining legal advice.” Nash Estate v Grand Haven, 321 Mich App 587, 592; 909 NW2d 862 (2017) (internal quotations and citations omitted). It is “designed to permit a client to confide in his attorney, knowing that his communications are safe from disclosure.” Id. at 593.
Importantly, the attorney-client privilege does not apply to communications unless there is an “element of confidentiality.” People v Compeau, 244 Mich App 595, 597; 625 NW2d 120 (2001). For example, when a client in a courtroom speaks to his attorney loudly enough that it can be overheard by the bailiff, that is not confidential (hint: whisper or write it down). Id. at 597-598. Similarly, statements made by a criminal defendant to his attorney over a jail phone line are not privileged when the defendant knew that the lines to be monitored and recorded (hint: if you are in jail, don’t talk about anything you don’t want recorded and used against you, even if you are talking to your attorney). People v Miller, unpublished per curiam opinion of the Court of Appeals, issued February 5, 2019 (Docket No. 337460), p 4. Put differently, just because a client does not intend to disclose an attorney-client communication to a third party, it does not mean that it is necessarily privileged.
Until Stavale, Michigan courts had yet to address the issue of attorney-client privilege in the context of a party’s using an employer’s email system to communicate with is personal attorney.
The Stavale Holding and What it Means for the Attorney-Client Privilege in Michigan
The Stavale court used federal and other states’ law to aid in answering the previously unanswered question under Michigan’s law. Though other jurisdictions’ rulings are not necessarily “precedent,” they can be used as persuasive, non-binding authorities by our courts.
Looking to the issues at hand and considering other jurisdictions’ handling of the issue, the Michigan Court of Appeals set forth a two-factor test:
(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.
Stavale, supra at 6. The court also observed that the analysis should be performed “on a case-by-case basis,” and that the two factors (above) are non-exhaustive. Id. The Stavale court observed that whether the company actually monitors email accounts may be relevant in some cases. Id. at 6-7. In that context, the court referred to the email from Mr. Stavale’s employer (that it did not read his emails and did not have his password) in a footnote.
As to the second factor, the court cited another case where an employee handbook was given to an employee but not read and an acknowledgement of reading was not signed by the employee, indicating such issues are relevant to an employee’s awareness. See id. at 8. However, it did not rule on the issue of notice to Mr. Stavale specifically. The court remanded the case to the trial court to make that determination within the framework it provided. Id.
In Stavale, the Michigan Court of Appeals clarified the law of attorney-client privilege when an employer’s email and/or computer equipment is used by a person to communicate otherwise-privileged information to his/her attorney. The Stavale court made clear that communications from a person to his/her attorney via a company’s email system may not be privileged. The court provided a framework to be applied by the trial court and remanded the case for determination using the framework. Absent intervention by the Michigan Supreme Court, attorneys and parties in Michigan should expect that the Stavale court’s analytical framework should be controlling of this issue in the future.
Practically, attorneys should caution their clients about using company email addresses, networks, computers, etc. for confidential communications. Much of the analysis depends on the policies of a particular company and how corporate policies are employed. However, it is not uncommon for employers of all sizes to require employees to receive, review and sign an acknowledgement of a company’s employee handbook. This is often done early on in the employment process—potentially years in the past—and may not be remembered by clients. Given this, attorneys should consider advising clients to communicate only via private email accounts and communications equipment in the absence of certainty about employer policies.