Denver Bar Association
November 1999
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E-Mail Rules: Really it Does

by Richard Brust

There is mail and there is e-mail, but in this technological age there is less and less difference between the two.

That’s what an ABA committee has concluded in issuing its opinion that lawyers don’t violate ethics and rules by sending client information in unencrypted e-mail—provided they take reasonable precautions to guard against disclosure.

The ABA Standing Committee on Ethics and Professional Responsibility says e-mail poses "no greater risk of interception or disclosure" than traditional methods of communication, such as phone calls or letters, which are accorded a reasonable expectation of privacy. However, the committee cautions lawyers to check with their clients about highly sensitive information before hitting the send key.

The analysis is contained in Formal Opinion 99-413, issued in March. Access it on the Internet at www.abanet.org/cpr/ethicopinions.

html.

The opinion specifically addresses Model Rule of Professional Conduct 1.6(a), which prohibits revealing information relative to client representation. Since the "risk of unauthorized interception and disclosure exists in every medium," the opinion says, lawyers need only take reasonable steps when sending unencrypted e-mail. Although the opinion doesn’t detail those precautions, it analyzes other methods of communication as comparative guideposts. For example, although letters are sealed and "arguably more secure than e-mail," they may be lost or stolen. And just as postal services reserve the right to inspect contents of mail, so do Internet service providers.

In addition, says the opinion, conversations on telephones—landline, cordless and cellular, can be overheard, and fax messages can be misdelivered. The opinion also compares the variety of e-mail services, including direct e-mail through which the lawyer and client communicate by dial modem; private systems, such as internal corporate e-mail and extranets; and online and Internet service providers.

The opinion reflects the trend among the majority of state bar associations, which have similar rules on e-mail transmissions.

But not all states concur. Pennsyl-vania and Arizona expressly caution lawyers to consult with clients before sending unencrypted e-mail. North Carolina advises lawyers against using e-mail, while Iowa prohibits using e-mail without client consent, encryption or a similar security system. Iowa State Bar Association President David Beckman says he favors loosening restrictions on e-mail, and has written on the subject in the state bar’s publication. But he says he doesn’t expect the state to change its rules soon.

"We need to let attorneys decide when it’s appropriate to send e-mail," says Beckman, a technology expert and co-author of a regular ABA Journal column on technology. "The rhythm of communication with a client can be crucial. I want to make the judgment, not some regulating body."

"Red Letter Day for E-Mail" is an article from the June 1999 issue of the ABA Journal.

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