Read All Over: Two New Opinions Describe Need to Keep Email from the Wrong Hands
Illustration by Stuart Bradford
With all due respect to basic paper and direct conversation, email and other electronic vehicles are becoming the dominant forms of communication in today’s world.
But while email, text messaging and cellphones offer speed, efficiency and convenience that are hard to resist, they can have downsides. One is the fact that electronic communications never really go out of existence. And as two recent ABA ethics opinions point out, that can raise important confidentiality issues for lawyers when they communicate with clients.
Formal Opinions 11-459 (Duty to Protect the Confidentiality of Email Communications with One’s Client) (PDF) and 11-460 (Duty When Lawyer Receives Copies of a Third Party’s Email Communications with Counsel) (PDF) were issued Aug. 4 by the ABA Standing Committee on Ethics and Professional Responsibility.
A COMPANY COMPUTER
Both opinions use the same hypothetical fact pattern as a starting point.
An employee of a company retains a lawyer to advise her on a potential workplace claim against the employer. The company provides the employee with a computer for her exclusive use in the course of her employment, but it’s customary for employees to occasionally use their computers for personal reasons. A written policy of the company states that it has a right of access to all employee computers and email correspondence, including those relating to personal matters. Despite that policy, the employee has used her computer at work to communicate with her lawyer about her possible claim against the company.
Opinion 11-459 discusses what steps a lawyer must take to prevent third parties from gaining access to email communications between the lawyer and a client.
“Whenever a lawyer communicates with a client by email, the lawyer must first consider whether, given the client’s situation, there is a significant risk that third parties will have access to the communications,” the opinion states. “If so, the lawyer must take reasonable care to protect the confidentiality of the communications by giving appropriately tailored advice to the client.”
The “significant risk” factor should not be underestimated. There are many reasons why companies monitor computer—and employer-issued smartphone—use by employees, including productivity, security and protection of reputation. Companies may scrutinize employee emails as part of their compliance obligations or in the course of internal investigations. More over, email sent or received through a company’s network is captured on servers, and can be read and copied by third parties, even if the employee thinks she has deleted it.
The opinion notes that the law is evolving on the question of whether an employee’s client-lawyer communications located on an employer’s server are privileged. But it focuses on ethics implications of the risk that such communications may be seen by others and held admissible in legal proceedings.
“Given these risks,” the committee concludes, “a lawyer should ordinarily advise the employee-client about the importance of communicating with the lawyer in a manner that protects the confidentiality of email communications.”
A lawyer’s duty to warn the client about the risk of using workplace devices to communicate with the lawyer is grounded in Rules 1.1 and 1.6 of the ABA Model Rules of Professional Conduct. (The Model Rules are the direct basis for lawyer conduct codes in every state except California.)
Model Rule 1.1 requires that a lawyer provide competent representation to a client, and Model Rule 1.6 requires a lawyer to refrain from revealing “information relating to the representation of a client unless the client gives informed consent.”
Comments to Rule 1.6 state that the duty requires lawyers to “act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure” and to “take reasonable precautions to prevent the information from coming into the hands of unintended recipients.”
The opinion says a lawyer should address the issue promptly with the client. “In particular, 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.”
LET THE COURT DECIDE
Formal Opinion 11-460 picks up the hypothetical with the employee filing a lawsuit against the company. The company then copies the contents of her workplace computer and gives it to outside counsel. In reviewing the material, the outside counsel notices that some of the emails are marked attorney-client confidential communication. Does the company’s counsel have an obligation to notify the employee’s lawyer that the employer has accessed this information?
Although courts may recognize a legal duty under these circumstances, Opinion 11-460 concludes that “the Model Rules do not independently impose an ethical duty to notify opposing counsel of the receipt of private, potentially privileged e-mail communications between the opposing party and his or her counsel.”
ABA Model Rule 4.4 states, “A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.” But the opinion makes the rule inapplicable to emails because they are not “inadvertently sent” when they are retrieved by a third person from a public or private place where they are stored or left. Documents are “inadvertently sent” when they are “accidentally transmitted to an unintended recipient, as occurs when an email or letter is misaddressed or when a document is accidentally attached to an email or accidentally included among other documents produced in discovery.”
Ultimately, the decision on what to do with communications that one party thought were confidential might best be made by a court, states the opinion. “Even when there is no clear notification obligation, it often will be in the employer-client’s best interest to give notice and obtain a judicial ruling as to the admissibility of the employee’s attorney-client communications before attempting to use them and, if possible, before the employer’s lawyer reviews them,” the opinion states.
“This course minimizes the risk of disqualification or other sanction if the court ultimately concludes that the opposing party’s communications with counsel are privileged and inadmissible.”
