| 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. |
