When defending a litigation filed by a current or former employee, it is now routine practice for the employer’s counsel to review the employee’s workplace e-mails and computer for information relevant to the employee’s claims or the employer’s defenses. This, of course, is consistent with the principle that the employer’s e-mail and computer systems are the property of the employer and employees have no expectation of privacy with respect to electronic communications sent or received via their employer’s systems. If, however, an employee has communicated with his counsel using his work-issued e-mail address or computer, does defense counsel have an obligation to notify opposing counsel of his or her possession of the communications?

According to the American Bar Association’s Formal Opinion 11-460 (August 4, 2011), if an employer’s lawyer receives copies of an employee’s communications with counsel, which the employer located in the employee’s work e-mail or on the employee’s workplace computer, neither Rule 4.4(b) nor any of the other Model Rules of Professional Conduct imposes an ethical duty on defense lawyers to notify opposing counsel of the receipt of such communications.