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    Ethics: Filtering Spam Emails

    With proper care to protect attorney-client privilege, attorneys can use a third-party service to filter spam emails. Here are some factors to consider.

    Dean Dietrich

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    Wisconsin Lawyer
    Vol. 77, No. 8, August 2004

    Filtering Spam Emails

    With proper care to protect attorney-client privilege, attorneys can use a third-party service to filter spam emails. Here are some factors to consider.

    by Dean R. Dietrich

    Dean DietrichDean R. Dietrich, Marquette 1977, of Ruder, Ware & Michler L.L.S.C., Wausau, is chair of the State Bar Professional Ethics Committee.

    Question

    Our law firm is considering the use of a private company to sort our incoming emails and filter out spam email. Can we hire a company to do that?

    Answer

    Spam emails have become the curse of our new technology. Most law firms and lawyers today are open to communicating with clients by email and many clients are insisting on email communication to avoid the cost and delay of regular mail. With the convenience of email communication, unfortunately, comes advertisers' use of email to promote their products to everyone on the World Wide Web. Lawyers and law firms have to consider email protection or spam protection systems in order to remain efficient and effective in using email for communicating within the firm and to clients.

    The Ethics 2000 revisions to the Model Rules of Professional Conduct recognize the use of electronic mail by lawyers as part of the new age practice of law.1 The ABA Ethics 2000 Committee adopted a new Rule 1.0 entitled "Terminology" that contained definitions of various words and phrases used throughout the Rules of Professional Conduct. One of the definitions in Rule 1.0 is "in writing," which is defined as:

    "'Writing' or 'written' denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecording and e-mail. A 'signed' writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing."

    This definition recognizes the use of electronic mail as an accepted method for communicating between lawyer and client. Lawyers and law firms are looking to third parties to offer a filtering service that would block all spam-type emails from directly arriving in the lawyer's email box and segregating those emails for review at a later time. All email correspondence between a lawyer and a client is obviously governed by SCR 20:1.6, the confidentiality rule. Thus, any communication between a lawyer and a client by email must be protected from review by a third party. The filtering systems offered by most companies only filter out emails that appear to include advertisements or solicitations and do not block emails addressed specifically to a lawyer or law firm that have a business relationship or business content.

    There are many things to consider when looking for a spam filtering program that will assist the lawyer in the efficient use of email. Some factors to be considered are:

    • There should be a specific discussion between the lawyer or the law office manager and the filtering provider about the type and methodology of the filtering system that will be used to gather the spam email.
    • The lawyer or law firm should enter into a confidentiality agreement with the individual or business that is providing the filtering system to ensure that the individual or business will keep all email communications to the law firm confidential and will not disclose the content of the emails, even if of a spam nature, to any other person.
    • Each lawyer should be trained on how to use the filtering system, including any phrases that may be used to capture spam emails and how to avoid the use of those phrases in email correspondence to a client.
    • Specific policies and procedures should be established for a regular and routine review of spam emails that are collected by the service in order to determine if a client-related email has been captured in the filtering system.
    • A specific individual should be delegated to watch the emails to make sure a timely response is given to any client-related email.

    The Professional Ethics Committee opinions are available in Wisconsin Ethics Opinions, published by State Bar of Wisconsin CLE Books, which includes the complete text of all formal, informal, and memorandum opinions issued by the Professional Ethics Committee since 1954, including opinions that have been withdrawn.

    The book also includes the full text of the Rules of Professional Conduct for Attorneys (SCR 20). To order Wisconsin Ethics Opinions, call (800) 728-7788 or visit Marketplace online.

    Lawyers and law firms should be careful when considering implementing a filtering system that would block spam emails. While it may be necessary to block and segregate spam emails from reaching each individual computer, the lawyer or law firm must monitor the spam emails that are collected by the filtering system to make sure there is no mistake and that no client email goes unanswered. This precaution is little sacrifice to avoid the constant barrage of spam email messages, which must be reviewed one-by-one by the individual lawyer.

    Care also should be taken to ensure that the email filtering done by a private company does not result in a third party reviewing confidential attorney-client emails, so that any privilege attached to those emails is not lost.

    1The ABA Ethics 2000 Report is currently being studied by a special committee appointed by the Wisconsin Supreme Court. It is anticipated that a petition will be filed with the court this fall that will propose numerous amendments to Supreme Court Rule Chapter 20, the Rules of Professional Conduct for Wisconsin Attorneys.

    Opinions and advice of the Professional Ethics Committee, its members, and assistants are issued pursuant to State Bar Bylaws, Article IV, Section 5. Opinions and advice are limited to the facts presented, are advisory only, and are not binding on any court, the Office of Lawyer Regulation, or State Bar members. Attorneys with questions on professional ethics issues may contact the Ethics Hotline at (800) 444-9404, ext. 6168; or (608) 250-6168 (all day Wednesday); and (608) 629-5721 on Monday, Tuesday, Thursday, and Friday mornings. Send written requests for Professional Ethics Committee opinions to the Professional Ethics Committee, c/o org kkaap wisbar Keith Kaap, State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.




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