| Legal Communication E-mail and Attorney-Client Communications
By Maureen B. Collins
Lawyers are not noted for being the first to jump on any technological bandwagon. I do think that it is safe to say, however, that by this time, virtually all of us are accustomed to conducting much of our daily business via e-mail. There are a million advantages to e-mail. You can send substantive information across time zones in an instant. You can communicate with large groups of people with the touch of a send button. You can send an e-mail any time of day or night and expect a fairly immediate response. So is there any downside? Of course. Nothing's perfect and e-mail is no exception. There is an ongoing debate about the perils vs. the plusses of e-mail when it comes to issues of privacy and privilege. Under the Model Rules of Ethics, attorneys are required to keep certain types of information communicated under certain circumstances confidential. The relationship between an attorney and client gives rise to a privilege to enforce that confidentiality. The privilege can, however, be waived. One instance in which waiver occurs is when the information is communicated in a way that is not a "reasonable effort" to keep the information confidential.1 Now this article doesn't purport to be a treatise on the law of confidentiality and attorney-client privilege but, hopefully, it will provide some food for thought. The perils of hitting "send" New technological developments always raise the question of whether there is a reasonable expectation of privacy. First the telegraph, then the telephone, then the fax, then e-mail. E-mail, though, brings with it some new considerations. First, e-mail is frightfully easy to misdirect with the touch of a button ; those of you who have hit the "reply to all" button instead of "reply to sender" know exactly what I mean. Second, by its very nature, most e-mail is directed through a third party. I'm no techie, so let's simplify matters and just think of this third party as an ISP (Internet service provider). AOL, for example, has the right to review the content of material travelling via its system. In addition to this invisible yet implicitly authorized third party, there exists the more ominous uninvited guest—a hacker, cyberthief, peeping techie tom. The news is rife with instances of unauthorized access to computerized information. Third, e-mails never really die...they just get deleted. Most of us assume that when we hit the delete option after viewing an e-mail, the computerized information vanishes like smoke. Instead, that information goes to a sort of cyberspace graveyard on the hard drive of the computer...giving new meaning to the term "smoking gun" in discovery disputes. This problem is exacerbated by people's willingness to e-mail some things that they would never dream of speaking, much less putting on paper. Think about those last stupid jokes someone e-mailed you and you will know what I mean. How to protect yourself Does this mean that you can't take advantage of this technological wonder to help you keep up with the responsibilities of a busy law practice? Probably not. A formal opinion recently proffered by the ABA Committee on Ethics and Professional Responsibility supports what an earlier opinion from the Illinois State Bar Association committee was among the first to say; there is a reasonable expectation of privacy associated with the use of e-mail. According to this opinion, using e-mail does not, per se, constitute a waiver of the attorney-client privilege.2 Under most circumstances, attorneys are not required to use special technology to "encrypt" or technologically "scramble" their communications. This pronouncement, while helpful, still leaves many questions unanswered and doesn't address many of the other pitfalls associated with e-mail communication. So how can you protect yourself? Practice safe e-mail. Think about how you and your client use e-mail and consider the possibility that it may not always be the right mode of communication. Disclaim, disclaim. Have your e-mail system automatically add the same sort of confidentiality disclaimer you now put on your fax cover page. It is no guarantee of privacy, but it makes sense and it's easy to do. Follow developments. Keep current on the state of the law in this area; it is sure to continue to develop over the next few years. Better yet, appoint someone in the firm to be primarily responsible for keeping abreast of these developments so that someone is "on call" in this area. If you have any advice or have addressed this issue in your practice, please e-mail me. Be careful, though, you never know who may read it... 1. For some excellent information on this point, there are a number of excellent law review articles on the subject. See, for example, Note: For Your Eyes Only? The Real Consequences of Unencrypted E-Mail in Attorney-Client Communication, Christopher Miller, 80 BU L Rev 613 (2000) and Note: Electronic Mail and Confidential Client-Attorney Communications: Risk Management, Colleen L. Rest, 48 Case W Res 309 (1998). 2. See American Bar Association Committee on Ethics and Professional Responsibility, Formal Opinion No. 99-413 (1999). See also ISBA Advisory Opinion on Professional Conduct 96-10 (1997), available on the ISBA Web site at <http://www.isba.org/Courtsbull/ EthicsOpinions/96-10.asp>. ———————————— Legal Communication is edited by Maureen B. Collins, director of legal writing at DePaul College of Law. Comments, questions, and other correspondence regarding the column may be sent to her at <mcollins@wppost.depaul.edu> or DePaul College of Law, 25 East Jackson, Chicago, Illinois 60604. |