May 2014 Bar Bulletin
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May 2014 Bar Bulletin

Electronic Confidentiality - An Everyday Ethics Reminder

By Paul Raskin


With new technologies come new ethics issues. January Bar Bulletin articles reminded readers to protect their metadata when transmitting documents and to preserve confidentiality when using electronic storage devices. This article highlights an ABA ethics opinion advising attorneys to warn clients to avoid using employer email accounts and employer computers when communicating about personal legal matters.

In our fast-paced world of text messages and Twitter, people can find themselves reaching for the easiest, most accessible methods of communication. The ABA Standing Committee on Ethics and Professional Responsibility ("Committee") opined in Formal Opinion 11-459 (2011) that, "A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access."

More specifically, the Committee cautioned:

In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third-person.

According to the Committee, "as soon as practical after a client-lawyer relationship is established, a lawyer typically should instruct the employee-client to avoid using a workplace device or system for sensitive or substantive communications, and perhaps for any attorney-client communications, because even seemingly ministerial communications involving matters such as scheduling can have substantive ramifications."

The Committee identified representation of an employee in an employment dispute as a "clear example of where failing to warn the client about the risks of e-mailing communications on the employer's device can harm the client, because the employment dispute would give the employer a significant incentive to access the employee's workplace e-mail and the employer's internal policy would provide a justification for doing so."

It noted, however, that the "employment scenario" is "not the only one in which attorney-client electronic communications may be accessed by third parties," that the "confidentiality of electronic communications may be jeopardized in other settings as well," and that the "risk may vary." It identified, for example, "public computer[s]" and "borrowed computer[s]." "Third parties also may be able to access confidential communications when the client uses a computer or other device available to others, such as when a client in a matrimonial dispute uses a home computer on which other family members may have access."

The Committee explained, "Rule 1.6(a) requires a lawyer to refrain from revealing 'information relating to the representation of a client unless the client gives informed consent.'" Further, a lawyer's duty to "act competently to protect the confidentiality of clients' information," is "implicit in the obligation of Rule 1.11 to 'provide competent representation to a client,'" and is "recognized in two comments to Rule 1.6."

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