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 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 Keith Kaap, State Bar of Wisconsin,
P.O. Box 7158, Madison, WI 53707-7158.
Wisconsin
Lawyer