Email to a friend

District Court Finds Personal E-Mail From Work Still Privileged

A federal prosecutor has won his fight to conceal e-mails he sent to his attorney over the government’s computers, contradicting a popular belief that employees have no expectation of privacy on work computers.

The U.S. District Court for the District of Columbia ruled on Dec. 10 that Assistant U.S. Attorney Jonathan Tukel had a reasonable expectation of privacy in those e-mails because federal prosecutors were allowed to use work e-mail for personal matters. Therefore Tukel’s messages to his private lawyer sent from work are covered by the attorney-client privilege and can remain confidential.

The party trying to get the e-mails is former federal prosecutor Richard Convertino, who lost his job after his convictions in a high-profile terrorism trial in Detroit were overturned in 2004 due to prosecutorial misconduct. Convertino, who believes he was retaliated against for blowing the whistle on incompetence in the Bush administration’s war on terror, is trying to find out who leaked confidential information about an investigation into his conduct to the Detroit Free Press. Convertino believes Tukel’s e-mails to his lawyer may shed some light on the matter.

According to court documents, Tukel was the prosecutor in Detroit who reviewed Convertino’s cases, and he was “one of the original parties that initiated confidential personal matters” related to Convertino.

Tukel has denied in an affidavit that he’s the source of the leak. But Convertino still wants the emails. He argued that Tukel had no privacy expectations in e-mails sent over a government computer.

The court disagreed.

“The DOJ maintains a policy that does not ban personal use of the company email. Although the DOJ does have access to personal emails sent through this account, Mr. Tukel was unaware that they would be regularly accessing and saving emails sent from his account. Because his expectations were reasonable, Mr. Tukel’s private emails will remain protected by the attorneyclient privilege,” wrote Chief Judge Royce Lamberth.

Tukel’s lawyer, James K. Robinson, a partner in the Washington office of Cadwalader, Wickersham & Taft, said the judge got it right—“Where someone who uses their company e-mail, whether with the Justice Department or someone else, intends the communication to be confidential and takes reasonable steps to ensure the confidentiality…there is no waiver of the attorney-client privilege.”

Robinson said the judge also recognized that in many instances, work e-mail is the only e-mail people have. “It’s one thing if the employer has a rigid rule that says you can never use your email for anything personal, but most employers don’t,” he said.

Convertino’s lawyer, Stephen M. Kohn of Washington’s Kohn, Kohn & Colapinto, was unavailable for comment.

Plaintiffs’ lawyers see the ruling as a boost for employees, both federal and private. “We’ve had to constantly warn our clients, ‘Don’t email me,’ ” said Debra D’Agostino of the Washington office of Tully Rinckey, who represents federal employees in workplace disputes. “And there have been a number of times where I get an e-mail from a client and I say, ‘Goodness, opposing counsel is going to grab this and use it.’ ”

“The fact that we have clarity now is a very good thing,” she said.

Reprinted with permission from the National Law Journal © 2011 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved. For information, contact 877-257-3382, or visit


Attorney Locator

Find an attorney near you.
Click below.

Contact Us

  • Tully Rinckey announces new hires and promotion

    Derrick T. Hogan was promoted to senior associate, overseeing the criminal defense practice in Albany. Hogan joined as a law clerk in 2009. Morgan Smith joined as recruitment manager. Smith has more than 14 years of staffing and recruitment experience and previously …

  • Albany Police Officer Arrested

    Officer Caught on Camera Slamming 15-Year old Girl Albany Police Chief Brendan Cox says on July 26th, Officer Ervis Miftari was called to St. Anne Institute, a rehabilitation center for troubled girls, to help with one of the residents, who …

Read All

  • Free Download: EEOC 2016 Update White Paper

    You Could Be Sharing Confidential Info and Not Even Know It Tully Rinckey’s white paper details the Equal Employment Opportunity’s (“EEOC”) nationwide change to procedure that has gone largely unnoticed. The new procedure applies to Charges filed on or after …

Read All

Read All

  • Tully Rinckey PLLC Binghamton Office Ribbon Cutting

    You’re Invited: Tully Rinckey PLLC Binghamton Office Ribbon Cutting Tully Rinckey PLLC, an upstate-wide coast-to-coast 70 attorney full-service law firm, is holding a ribbon cutting for its new office space at 4100 Vestal Road, Suite 104, Vestal, NY 13850 on …

Read All