Vol. 84, No. 12, December 2011
Dean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is past chair of the State Bar Professional Ethics Committee.
I communicate regularly with my clients by email. Do I have to be concerned about the security of those communications?
Just as with discussions with a client over a cell phone, a lawyer must think about potential confidentiality breaches when communicating by email. Generally, email communication with a client is considered to be confidential and to meet the requirements of SCR 20:1.6. Several states have issued ethics opinions holding that it is acceptable to communicate with a client by email but that the lawyer should take extra precautions when transmitting by email information that is highly confidential, such as strategy memos or communications regarding intellectual property issues. In such situations, it may be appropriate to use encryption when communicating with the client. Lawyers must, of course, be careful that the communication they are sending to a client is properly addressed and is sent from a secured server that cannot be attacked by an outside party.
A recent opinion from the American Bar Association Standing Committee on Ethics and Professional Responsibility suggested that lawyers have an additional responsibility – to monitor and caution a client about the client’s method of communication with the attorney to ensure that the communication exchange remains confidential. In this opinion, the committee discussed communications sent by a client from the email server of the client’s employer and the employer’s right to retrieve and review such communications even if they are sent to the attorney representing the employee. The opinion cautions lawyers to advise their clients of the risks of communicating using employers’ servers and the potential that employers will have access to those supposedly private communications.
The committee summarized its conclusion with the following:
“Given these risks, 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, just as a lawyer should avoid speaking face-to-face with a client about sensitive matters if the conversation might be overheard and should warn the client about discussing their communications with others. In particular, as soon as practical after a client-lawyer relationship is established, a lawyer should typically 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.”
Although this opinion has been criticized for placing an unreasonable burden on lawyers to oversee communications from clients, the opinion itself raises a clear obligation on the part of lawyers to ensure, to every extent possible, that communications with a client are confidential. That is the fundamental principle behind the requirements of confidentiality in SCR 20:1.6. Lawyers should clarify with a client at the time of initial engagement how best to communicate regarding the representation and warn the client that the client must be as careful about communicating information in a secure and confidential way as the lawyer will be in communicating with the client. The lawyer also should advise the client not to forward any communication from the attorney to other people because forwarding the communication might waive the attorney-client privilege and result in loss of the level of confidentiality needed to ensure an effective representation.
Confidentiality is a key component of the attorney-client relationship, and the lawyer must exercise reasonable diligence in reviewing and recognizing how the client is communicating with the attorney and provide advice to the client to ensure that those communications remain confidential. Lawyers must fully warn clients about communication and the need to exercise discretion when determining how to communicate with the attorney. This also is true if the client is using a computer in a public setting, such as a library or hotel, to send and receive messages. The attorney must exercise caution and advise the client to use appropriate security measures when communicating with the attorney.