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Recent ABA ethics opinions: Email communications
By Peter H. Geraghty
In August of 2011, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinions 11-459 Duty to Protect the Confidentiality of Email Communications with One’s Client and 11-460 Duty When Lawyer Receives Copies of a Third Party’s Email Communications with Counsel.
Formal Opinion 11-459
Formal Opinion 11-459 addresses a lawyer’s obligation to warn his client about potential breaches of confidentiality when the lawyer knows that the client is using a computer for email correspondence with the lawyer that a third party may have access to. The committee observed that this is a possibility in many instances; such as when the client uses his business email account to communicate with his lawyer, where he uses his employer-supplied work computer, smart phone or tablet device to access his private email account, or where he uses a public computer at a library or hotel.
The committee stated that under such circumstances, the client may not be aware that a third party may potentially have access to his computer, and may therefore not take the necessary precautions to protect the confidentiality of his email communications.
The committee examined this issue in the context of a hypothetical situation involving a client who becomes involved in an employment dispute with the employer. The client is assigned a workplace computer by his employer, and the employer has a written internal policy whereby it has the right to access all of the employee’s business and personal email files that the employee generated on the workplace computer. Under these facts, the committee considered the circumstances under which a lawyer should warn the client about the risks of communicating with the lawyer via a workplace supplied computer or other communications device.
Citing Comments  and  to Model Rule 1.6 Confidentiality of Information, the committee noted that a lawyer has an obligation to ensure that confidential client information is protected:
Comment  observes that a lawyer must “act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.” Comment  states in part: “When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. ... Factors to be considered in determining the reasonableness of the lawyer's expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement.” Formal Opinion 11-459 at page 2.
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The committee noted that clients may not have a reasonable expectation of privacy when they use an employer’s computer or other device and the lawyer should advise the client at the outset of the representation to avoid using such devices to communicate with him. This obligation attaches when the lawyer should reasonably know that the client intends to communicate with him via email, the client has access to a workplace computer, the employer’s policies permit the employer to access the client’s e-mail, and the employer’s internal policy and local law does not clearly protect the confidentiality of the client’s communications.
The committee also observed that a lawyer should also take protective measures to prevent third parties from accessing confidential client communications. These include avoiding sending emails to the client’s business email account and warning the client about the dangers of sending emails from a business or personal account from a workplace computer.
Formal Opinion 11-460
In Formal Opinion 11-460, the committee addressed in effect the “mirror image” of Formal Opinion 11-459; a lawyer’s ethical obligations when he receives copies of a third party’s email correspondence with his lawyer.
As in Opinion 11-459, the committee based its discussion of this issue on a hypothetical situation involving an employee who files an employment discrimination suit against his employer. The employer subsequently copies all of the employee’s emails and forwards them to the lawyer. The lawyer reviews them and finds some that are correspondence between the employee and the employee’s lawyer and that are marked “Attorney-client Confidential Information.”
Model Rule 4.4
At the outset of the opinion, the committee referred to Model Rule 4.4 Respect for Rights of Third Persons that states as follows:
(b) 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.
The committee noted that under the facts of the hypothetical, Rule 4.4(b) would be inapplicable, since the emails in question were not inadvertently sent; they were deliberately copied by the employee’s employer. The committee stated:
A “document [is] inadvertently sent” to someone when it is 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. But a document is not “inadvertently sent” when it is retrieved by a third person from a public or private place where it is stored or left. Formal Opinion 11-460 at page 1.
Citing to ABA Formal Opinions 06-442 Review and Use of Metadata (2006) and 06-440 Unsolicited Receipt of Privileged or Confidential Materials: Withdrawal of Formal Opinion 94-382 (July 5, 1994) (2006) the committee noted that it had twice decided that a lawyer did not have an obligation to provide notice to opposing counsel that it had received documents that were not inadvertently produced.
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Does applicable law require disclosure?
The committee observed, however, that some court decisions have imposed a duty to notify opposing counsel when “confidential documents are sent intentionally and without permission” in analogous employee-employer contexts. Furthermore, applicable rules of civil procedure regarding discovery may also impose disclosure obligations on the lawyer, and the lawyer may be subject to discipline for noncompliance.
The committee cited to paragraph  of the Comment to Rule 4.4 that states as follows:
 Paragraph (b) recognizes that lawyers sometimes receive documents that were mistakenly sent or produced by opposing parties or their lawyers. If a lawyer knows or reasonably should know that such a document was sent inadvertently, then this Rule requires the lawyer to promptly notify the sender in order to permit that person to take protective measures. Whether the lawyer is required to take additional steps, such as returning the original document, is a matter of law beyond the scope of these Rules, as is the question of whether the privileged status of a document has been waived. Similarly, this Rule does not address the legal duties of a lawyer who receives a document that the lawyer knows or reasonably should know may have been wrongfully obtained by the sending person. (emphasis added) For purposes of this Rule, "document" includes email or other electronic modes of transmission subject to being read or put into readable form.
The committee stated that under circumstances where the law of the jurisdiction is not clear whether the lawyer has a duty to disclose, the lawyer “need not risk violating a legal or ethical obligation.”
The employee’s emails received by the employer’s lawyer must be kept confidential since they would be “information relating to the representation” unless there is an exception under Rule 1.6(b) or if the client gives his informed consent. Rule 1.6(b)(6) permits a lawyer to “reveal information relating to the representation of a client to the extent that a lawyer reasonably (emphasis added) believes necessary …to comply with other law or a court order.” Therefore, under Rule 1.6(b)(6) the committee stated that the lawyer could disclose that he had received the emails even if the law of the jurisdiction was in doubt.Under circumstances where there is no clear legal precedent in the jurisdiction that would require the lawyer to notify the court or the opposing party that he has received the employee emails, the lawyer may not do so unless the client consents. The committee observed that it still may be in the client’s best interests to disclose since obtaining a court ruling on the email’s admissibility before the lawyer attempts to use them, and preferably before the employer’s lawyer reviews them would help to avoid having the employer’s lawyer from being either sanctioned or disqualified if the court were to rule that the email communications were privileged and inadmissible. Under these circumstances, the lawyer must clearly explain the possible consequences of disclosure and also any available alternatives to disclosure so that the client can make an informed decision under Rules 1.4 Communication and 1.6.
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