Secured Communications

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Duty of Prior Consultation


An attorney should consult with a client before communicating with the client by unencrypted e-mail . It is not necessary to obtain express consent but it is necessary to consult with the client about the risks of communicating by unencrypted e-mail before doing so. American Bar Association Formal Opinion 99-413 concluded that communication with a client by unencrypted e-mail does not violate the Model Rules of Professional Conduct. In reaching that conclusion the ABA cautioned:


The conclusions reached in this opinion do not, however, diminish a lawyer's obligation to consider with her client the sensitivity of the communication, the costs of its disclosure, and the relative security of the contemplated medium of communication. Particularly strong protective measures are warranted to guard against the disclosure of highly sensitive matters. Those measures might include the avoidance of e-mail, [footnote omitted] just as they would warrant the avoidance of the telephone, fax, and mail. See Model Rule 1.1 and 1.4(b). The lawyer must, of course, abide by the client's wishes regarding the means of transmitting client information. See Model Rule 1.2(a).


E-mail communications have become widespread but, from an attorney ethics perspective, it is probably not safe to assume that clients have an adequate understanding of the risks involved in communication by e-mail. In particular, it seems unlikely that clients will identify the risk that e-mail will be accessed by others who have legitimate access to a shared computer or network. Requests for informal advisory opinions, from attorneys whose clients have accessed materials on a legitimately shared computer, reinforce the concern that clients may not understand some of the risks.


Many e-mail attorney-client communications involve relatively innocuous information and do not present a great concern even if they are intercepted. On the other hand, any communication from an attorney that can be accessed by others may be of concern in some situations. For example, a client who is considering filing for dissolution could be significantly impacted if any communication from the attorney is received on a computer shared with the client’s spouse. Therefore, in order to be sufficient, consultation with an existing client prior to communicating by e-mail should take into consideration the nature of the client’s legal matter and the environment in which the client sends and receives e-mail. In some situations, similar concerns can arise regarding communications by regular mail or telephone.


If an engagement letter or fee agreement is used, it is advisable to include a provision regarding e-mail communication. However, this cannot substitute for actual consultation regarding the client’s situation. Appropriate questions included on an intake form or intake checklist could make consultation on this subject much quicker and easier. Some of the questions that might be asked include: Where is the computer you use for email? Does anyone else use or have the ability to use that computer? Is that computer connected to a network?


Disclaimer Not Required by Rules of Professional Conduct


The informal advisory opinions referenced above and the consultation requirement have given rise to a misconception that the Office of Chief Disciplinary Counsel or Legal Ethics Counsel have said that disclaimers must be included on e-mails. To the contrary, the ethical rules do not require a disclaimer on e-mails. The communication with a client or prospective client about the risks of e-mail communication must come before communication by e-mail. A disclaimer that comes with the e-mail is ineffective. The disclaimer doesn't hurt anything but it does not fulfill the need to communicate the risks before actually communicating by e-mail.


The risks of interception through the internet are probably relatively small, but real. The biggest risk, and one that most certainly has happened, is interception in the environment in which the e-mail is sent and received. Whether required by the ethical rules or not, most attorneys include a disclaimer on their e-mails and faxes. The disclaimer may be useful in deterring those who have obtained an e-mail through inadvertent or improper means from using the communication or the information contained in the communication. Attorneys considering how and whether to use a disclaimer may want to check with their malpractice carriers for recommendations regarding placement, form, and content. Some laws prohibit improper interception of e-mail and would provide a basis for action against the person who wrongfully intercepts e-mail. Whether any law addresses the actions of a person who uses a communication inadvertently received is beyond the scope of this article.