“In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive lawyer-client communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party,” reads Formal Opinion 11-459, from the ABA Standing Committee on Ethics and Professional Responsibility.
“Clients may not be afforded a ‘reasonable expectation of privacy’ when they use an employer’s computer to send e-mails to their attorneys or receive e-mails from their attorneys,” continues the opinion. “Employers often have policies reserving a right of access to employees’ e-mail correspondence via the employer’s e-mail account, computers or other devices, such as smartphones and tablet devices, from which their employees correspond.”
Third-party client devices, which also include public library or hotel computers, can jeopardize the confidentiality of electronic communications between a lawyer and client, the opinion said. Essentially any device that can be accessed by others, including using a home computer when a client is in a matrimonial dispute, can pose an issue.
“In contexts such as these, clients may be unaware of the possibility that a third party may gain access to their personal correspondence and may fail to take necessary precautions,” the opinion said.
ABA Model Rule of Professional Conduct 1.6 (a) explains that a lawyer must not reveal any information relating to representation of the client without consent, and must competently protect the confidentiality of the client.
“This committee has recognized that these provisions of the Model Rules require lawyers to take reasonable care to protect the confidentiality of client information, including information contained in e-mail communications in the course of a representation,” the opinion said.
The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions for the guidance of lawyers, courts and the public interpreting and applying the ABA Model Rules of Professional Conduct to specific issues of legal practice and client-lawyer relationships. Opinions are dated to reflect when committee members voted, rather than the publication date.
With nearly 400,000 members, the American Bar Association is the world’s largest voluntary professional membership organization. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.