The attorney-client privilege protects the communications between a client and an attorney concerning a legal matter. To ensure that the attorney-client privilege is protected, the communication must be made confidentially. In United States v. Schwimmer, the court held that the attorney-client privilege "requires a showing that the communication in question was given in confidence and that the client reasonably understood it to be so given." For the privilege to be protected, it must be made "under circumstances from which it may reasonably be presumed that it will remain in confidence." Disclosure should occur only to those parties involved in the legal action in which the communication concerns. If the communication is disclosed either directly or inadvertently to a third party, then the privilege is waived. Information may be disclosed inadvertently if a communication is monitored, for example. Accordingly, if an employee has been notified that computer use and communications will be monitored, the attorney-client privilege is waived.

One case dealing with this issue concerns a former physician at a hospital who sued his employer, Beth Israel Medical Center, for a breach of contract. The individual sought the return of the communications he had with his attorney via the hospital's email server, arguing that these communications were protected by attorney-client privilege. To determine whether these communications were privileged, the court looked at Beth Israel's email policy, which stated the following:

1.All Medical Center computer systems, telephone systems, voice mail systems, facsimile equipment, electronic mail systems, Internet access systems, related technology systems, and the wired or wireless networks that connect them are the property of the Medical Center and should be used for business purposes only.

2.All information and documents created, received, saved, or sent on the Medical Center's computer or communications systems are the property of the Medical Center. Employees have no personal privacy right in any material created, received, saved, or sent using Medical Center communication or computer systems. The Medical Center reserves the right to access and disclose such material at any time without prior notice.

1.What do you think the court held in this case?

2.Were the physician's email communications on the hospital's computer confidential?

3.Did attorney-client privilege apply? Why or why not?