A recent academic scandal involved the dismissal of the president of a major public university who for several years had been having a sexual relationship with a subordinate employee. The relationship was fully documented in hundreds of email messages.
What perhaps was the most shocking aspect of this incident to many people was that the president had carried on his extensive epistolary romance through his office (.edu) email address!
It is safe to say, however, that executive employment attorneys experienced in the representation of academic leaders – college and university presidents and heads of school – may have been wryly amused by this detail, but were not completely surprised.
The internet era, in which most business is carried on through electronic mail, is now over a quarter of a century old, but the sad truth is that many bright and sophisticated executives still have not fully come to terms with basic issues of privacy and confidentiality regarding their electronic communications.
Our professional lives are largely devoted to the creation and interpretation of those executive employment contracts which constitute the fundamental relationship between academic leaders and the institutions they manage on a day-to-day basis. The contracts of these college presidents and heads of school customarily explicitly impose the important duty of confidentiality on the chief executive. Frankly, problems in this area rarely, if ever, occur. A college president intuitively understands that the intimate details of their job – the school’s financial projections, hiring decisions, on-going legal matters, and strategic plans which have not yet been finalized, to name just a few – represent the school’s proprietary information which must be held in confidence by the chief executive or among a small group of administrators and/or trustees.
Nonetheless, burdened by dozens if not hundreds of daily tasks and a constant flow of electronic mail, these same leaders are not always careful to keep their personal communications separate from their office email. Of course, the university president who apparently spent a considerable part of his time sending love notes on his institutional email is an extreme example of intermingling personal and professional correspondence, but we still far too often receive initial inquiries to provide personal legal services to a university president or head of school through their .edu address.
It is wholly understandable why a chief executive who is required to send and respond to so many daily email communications might momentarily forget to switch to their personal email, such as their Gmail or Yahoo account, for such a personal inquiry. Nonetheless, we promptly point out that all communications with our office or either of our lawyers should be carried on through a private email address and, if possible, a private computer.
So here is the first “take away” which applies to all executive employees, not just college presidents and heads of school:
You have no “expectation of privacy” (to use the legal formulation) for any communication you send or receive using your employer’s email address. That fact alone should be sufficient to cause any academic executive to make certain that all of his or her personal correspondence is kept separate by sending and receiving it through a private email address.
Nor should any personal information ever be stored on a work computer. On more than one occasion, we have represented an executive who has been abruptly terminated from his or her employment. Such termination customarily includes, as a matter of routine procedure, being automatically shut out of the employee’s office email. More than one brilliant and experienced executive has asked us to retrieve their medical records and other personal data and correspondence from their employer. Why were those personal medical records stored on the executive’s office computer in the first place!?!
Note that personal privacy (as in not carrying on a romance, whether or not extramarital, on your office computer) is a somewhat different issue from confidentiality.
For us, as executive employment lawyers, whether we are working in higher or secondary education or in the world of business or finance, both issues – particularly the latter issue – implicate one of our most important concerns with respect to any of our clients: the strict preservation of the attorney-client privilege.
In Part 2 of this topic, I will focus on the nature of the attorney-client privilege as it relates to executive email transmissions, particularly in academia; why the privilege is so important; and how it can be protected and preserved rather than being inadvertently waived.
