ABA Opinions Regarding Electronic Communications

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October 28, 2011

ABA Opinions Regarding Electronic Communications

EmailsThe American Bar Association released two Formal Opinion on August 4, 2011: Formal Opinion 11-459 "Duty to Protect the Confidentiality of Email Communications with One's Client" and Formal Opinion 11-460: Duty when Lawyer Receives Copies of a Third Party's E-mail Communications with Counsel.?A summary of the Opinions are below:

Formal Opinion 11-459: Duty to Protect the Confidentiality of Email Communications with One's Client

Under Rule 1.6(a), attorneys must refrain from revealing ?information relating to the representation of a client unless the client gives informed consent.? Additionally, attorneys have a duty to ?provide competent representation of a client? under Rule 1.1.

In 1999, the ABA concluded that an attorney does not violate his duties under Rule 1.6(a) by sending information relating to a client?s representation by unencrypted e-mail (it warned, however, that disclosures of highly sensitive matters require strong protective measures).

Courts have been divided on whether a client-employee?s client-attorney communications sent by or stored on a workplace computer are privileged. The ABA concludes that the attorney should advise the employee-client as to the importance of keeping e-mail communications with the attorney confidential, and that the attorney should advise the client to not use a workplace devise or system for sensitive communications.

An attorney likely has an ethical duty to warn a client against using a workplace device or system for attorney-client communication when:

  1. that the client has engaged in, or has indicated an intent to engage in, e-mail communications with counsel
  2. that the client is employed in a position that would provide access to a workplace device or system;
  3. that, given the circumstances, the employer or a third party has the ability to access the e-mail communications; and
  4. that, as far as the lawyer knows, the employer?s internal policy and the jurisdiction?s laws do not clearly protect the privacy of the employee?s personal e-mail communications via a business device or system.

The ABA also noted that "[u]nless a lawyer has reason to believe otherwise, a lawyer ordinarily should assume that an employer?s internal policy allows for access to the employee?s e-mails sent to or from a workplace device or system.?

Formal Opinion 11-460: Duty when Lawyer Receives Copies of a Third Party's E-mail Communications with Counsel

Rule 4.4(b) makes clear that ?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.? However, the rule does not expressly address a situation in which an employee provides opposing counsel with copies of the employee's private communications with counsel, which the employee located in the employer?s workplace computer, email system, or other device.

The ABA has declined to interpret Rule 4.4(b) to require notice to the opposing counsel in the above situation, but notes that other law may impose a duty to notify.

If other governing law is unclear as to when disclosure is necessary, the ABA notes that

Rule 1.6(b)(6) allows the employer?s lawyer to disclose that the employer has retrieved the employee?s attorney-client e-mail communications to the extent he or she reasonably believes it is necessary to do so to comply with the relevant law, even if the legal obligation is not free from doubt. On the other hand, if no law can reasonably be read as establishing a reporting obligation, then the decision whether to give notice must be made by the employer-client.

However, the ABA suggests that giving notice and obtaining a judicial ruling is often in the employer-client?s best interest even when there is no clear notification obligation. The attorney must follow Rules 1.0(e), 1.4(b), and 1.6(a) when explaining the risks of disqualification or other sanctions to the client to enable the client to make an informed decision.

See ABA Releases Opinions Regarding Electronic Communications, Wealth Strategies Journal 2.0, Oct. 26, 2011.

Special thanks to Jim Hillhouse (WealthCounsel) for bringing these to my attention.

October 28, 2011 in Estate Planning - Generally, Professional Responsibility, Technology | Permalink

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