California Bar Journal
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E-mail transmissions do not violate confidentiality, says ABA
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Barring special circumstances, a lawyer does not violate a client's confidentiality privilege by transmitting documents via unencrypted electronic mail, according to an ethics opinion recently published by the American Bar Association standing committee on ethics and professional responsibility. Although lawyers have an obligation to take reasonable steps to protect confidential client information against unauthorized use or disclosure, the obligation does not require an absolute expectation of privacy in a communication medium, said the committee. It requires only a reasonable expectation of privacy.

(The State Bar of California's ethics experts have not yet addressed the question of electronic transmission of client documents.)

The ABA committee compared e-mail transmission of land-line telephone services, cellular and cordless phone service, fax machines and ordinary mail. It concluded that e-mail offers reasonable expectations of privacy, even though early state ethics rulings had focused attention on the medium's potential susceptibility to unauthorized interception.

Whether it is reasonable for a lawyer to use any particular medium to communicate with or about clients depends on the objective level of security the medium affords and the existence of laws intended to protect privacy, said the committee. E-mail is a generic term, encompassing a variety of systems for communica-tion between computer users. The opinion analyzes systems ranging from direct communication between two computers to communication via internet services, and concludes that each offers reasonable expectations of privacy.

In its comparisons with other communications mediums, the committee notes that mail can be lost, stolen or misplaced, and telephone conversations can be overheard by wiretap, eaves-dropping on multiple extensions, technical phone company errors or phone company monitors. But use of either mail or telephones still is generally considered to provide reasonable expectations of privacy.

The committee expressly stated it was not addressing use of cellular or cordless phones in its opinion, noting that authority is divided over whether users have a reasonable expectation of privacy in that medium.

In addition, the committee noted, there is no legal authority that specifically states that use of facsimile transmission is consistent with duties of confidentiality, pointing to a danger of misdirected faxes or possible breaches of privacy as office staff handle faxed materials.

The committee emphasized, however, that a lawyer still has an obligation to consider with a client the sensitivity of information being communicated, the potential costs if confidential information is disclosed, and the relative security of any medium of communication.

If a lawyer believes that confidential client information is so highly sensitive that extraordinary measures of protection are warranted, the lawyer should consult the client about means of trans-mission and follow the client's instructions.