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Column No. 30, August 1997

Lawyer-Client E-mail OK, But Watch The Spam

By Robert J. Ambrogi

Copyright 1997 Robert J. Ambrogi

Electronic mail is a wonderful tool – an evolving medium that lawyers are using with great success to enhance communications with existing clients as well as to help bring in new ones.

But as did the cellular phone and the fax machine before it, e-mail is raising a host of new ethical questions. Primary among them is whether a lawyer may use it to communicate with a client without violating the confidentiality of their relationship.

Two early opinions on the topic cautioned against lawyer-client e-mail, warning that an e-mail message was as open to public scrutiny as a postcard.

But a series of recent opinions have taken an about face, finding that e-mail, even without encryption, is as secure as a phone call and should be treated no differently.

Early Warnings

South Carolina was the first state to address the confidentiality of lawyer-client e-mail. In 1994, the state bar’s Ethics Advisory Committee issued an opinion (No. 94-27) that a lawyer’s use of e-mail to communicate with a client, "absent an express waiver by the client," would violate the ethical duty to maintain client confidences.

Analogizing e-mail to cellular phones, the committee explained, "[T]he very nature of on-line services is such that the system operators of the on-line service may gain access to all communications that occur on the on-line service."

Next to take up the issue was Iowa. In 1995, its Supreme Court’s Board of Professional Ethics, in Opinion 95-30, ruled that a lawyer using e-mail to communicate "sensitive material" with a client must encrypt the message to avoid violation of disciplinary and ethical rules.

A year later, Iowa revisited the issue. This time it went even further, saying, in Opinion 96-1, that to communicate with a client via e-mail, not only must a lawyer use encryption, but he/she must first obtain the client’s written consent, including the client’s acknowledgment of the security risk.

Recent Reversals

Recent months, however, have brought a reversal of this line of reasoning, with South Carolina revising its earlier decision and three other states saying that e-mail is sufficiently secure to protect client confidences – even without encryption.

The first of these came April 7, in an opinion from the ethics committee of the State Bar of Arizona. It concluded that it would not be unethical for a lawyer to communicate with a client using unencrypted e-mail. Taking the side of caution, however, it suggested that a lawyer may nevertheless want to use encryption to ensure confidentiality.

"It is not unethical to communicate with a client via e-mail even if the e-mail is not encrypted," the Arizona committee said. "This committee simply suggests that it is preferable to protect attorney/client communications to the extent it is practical."

The committee also cautioned lawyers that e-mail records may be discoverable. "This information thus should be included in the lawyer's decision as to whether or not confidential information should be communicated via e-mail," it noted.

Then came the Illinois State Bar Association’s professional conduct committee. In a May 16 advisory opinion, it acknowledged that interception of e-mail messages is possible, but concluded that this is no more likely than with ordinary telephone calls, and thus it is reasonable for lawyers to expect that e-mail will remain private.

Also a factor in the committee’s decision was the Electronic Communications Privacy Act, 18 USC 2510, et seq., which makes it a crime to intercept an e-mail message. "This provision demonstrates that Congress intended that Internet messages should be considered privileged communications just as ordinary telephone calls," the committee said.

Next followed Vermont, where the question before the ethics panel was whether using unencrypted e-mail to communicate with existing clients would violate the requirement of the Disciplinary Rules to maintain the confidentiality of client information. After reviewing the technology of e-mail, the panel found that it is no less secure than a phone call or a fax transmission.

"Since (a) e-mail privacy is no less to be expected than in ordinary phone calls, and (b) unauthorized interception is illegal, a lawyer does not violate [the disciplinary rules] by communicating with a client by e-mail, including the Internet, without encryption," the panel wrote. "In various instances of a very sensitive nature, encryption might be prudent, in which case ordinary phone calls would obviously be deemed inadequate."

Back Full Circle

All of which brought the issue back full circle to South Carolina. In a June opinion revisiting the ethics of e-mail (Opinion 97-08), the state’s ethics committee reversed its earlier opinion, finding that there is a reasonable expectation of privacy in Internet e-mail and that its use does not affect the confidentiality of client communications.

"E-mail transmissions via commercial networks or the Internet maintain confidentiality," the committee wrote. "While there exists a potential for communications to be intercepted, albeit illegally, from a commercial network mailbox or an Internet ‘router,’ the committee does not believe such a potential makes an expectation of privacy unreasonable. The same potential exists for the illegal interception of regular mail, the interception of a facsimile, and the unauthorized wiretapping of land-based telephone."

Still, the committee cautioned, there are times when "a prudent attorney" should be reluctant to use e-mail. "A lawyer should discuss with a client such options as encryption in order to safeguard against even inadvertent disclosure of sensitive or privileged information when using e-mail."

So, with fewer than half a dozen states having addressed the question, the consensus so far on lawyer-client e-mail seems to be, "Use it – but with caution."

Beware Of Spam

That takes care of e-mail to a client, but what of using e-mail to attract clients? The answer from Tennessee is, "Watch that spam."

If ever is written the history of lawyers on the Internet, there most certainly will be a chapter devoted to Laurence A. Canter.

Canter came to personify the worst fears of many about lawyers online when, in April 1994, he e-mailed an unsolicited advertisement for his immigration-law practice to more than 5,000 Internet news groups and thousands more electronic mailing lists.

In the emerging Internet culture of the time, Canter had committed the ultimate sin, the supreme violation of Netiquette – he was guilty of "spam."

Ever since an outcast among the virtual society of Netizens, Canter has now been cast out by his profession as well.

Last month, the Supreme Court of Tennessee disbarred Canter, who is also licensed in California and Arizona, in part for his Internet advertising practices.

"We disbarred him and gave him a one-year sentence just to emphasize that his e-mail campaign was a particularly egregious offense," said a spokesman for the Tennessee Board of Professional Responsibility.

The Tennessee hearing committee put it this way: "This posting caused injury to the public by intruding improperly into the privacy of computer users and by compelling recipients to pay for an advertisement they did not want nor solicit. The advertisement has further damaged the reputation of the legal profession and thereby the legal system."

Thus another entry for the history book: Canter, it appears, is the first attorney disciplined for illegal advertising on the Web.

Further Reading

Here is where to find these opinions on the Web:

Robert J. Ambrogi, a lawyer in Rockport, Mass., is editor of legal.online, a monthly newsletter about the Internet (http://www.legalonline.com). He can be reached by e-mail at rambrogi@legaline.com or by phone at (978) 546-7898.