General Practice, Solo & Small Firm DivisionSolo Newsletter

E-Mail Ethics and Confidentiality

by Richard M. Georges

The same rules that apply to written business correspondenceapply to e-mail. However, since e-mail travels faster and moreefficiently, the practical problems inherent with all lawyercommunications are magnified.

Encryption: Prudence or Paranoia?

Some experts recommend the use of encryption techniques forclient e-mail communications. However, the difficulty of use, andthe weakness of the legal arguments requiring the use of suchtechniques, makes such use inadvisable for ordinarycorrespondence. For documents that require special handling, suchas contracts or settlement agreements or sensitive materials,encryption is prudent.

In certain situations, encryption may be desirable from abusiness standpoint, to avoid all risk of interception, and wherethere is a likelihood that certain information may be the subjectof attempted theft. However, I am aware of no specific ethical orlegal requirements, at this time, for such use.

Even though there is probably no ethical or legalrequirement to encrypt e-mail, if you have made a determinationthat it is desirable, encryption gives protection that is notavailable for written correspondence.

Pretty Good Privacy (PGP) is a software program that allowsthe encryption and authentication of the text of a message andauthentication of the author and recipient. It is generallyaccepted as the "de facto" standard. Once encrypted, no one canview it without the "keys" to code and decode the message. PGPuses two digital keys: one public and one private. The privatekey belongs to the individual user. The public key belongs toeveryone that the individual user wants to have it.

Just as written or "snail" mail is protected by federal lawfrom interception, and just as telephone voice messages or faxmessages are protected from interception by the Federal WiretapAct, so are e-mail messages protected from interception by thecriminal statutes. It may be persuasively argued that e-mailcommunications to clients have the expectation of privacy, andthat there is no waiver of the attorney-client privilege by theiruse.

The Electronic Communication Privacy Act of 1986specifically protects electronic communications, and anyone whointercepts an e-mail message without authorization commits acrime.

For the same reason that there is no privilege waiver whenwritten mail is stolen, there is no privilege waiver when e-mailis intercepted by criminal conduct. However, just as problemshave arisen when fax messages were inadvertently sent to opposingcounsel, liability could accrue to misdirected e-mail. There isnothing inherent in e-mail that makes it different from otherforms of communication in that regard.

Confidentiality
Some states require lawyers to advise clients of thepossibility of a loss of confidentiality when using a portabletelephone. Cellular telephone communications are receivingattention of the same kind. While I am not aware of any statethat requires the prior notification and consent of a client anda warning to the client that there is a possible loss ofconfidentiality in the use of e-mail, the ethical requirementthat a lawyer be sensitive to the needs and desires of the clientmight require such notification in some circumstances.

In fact, it is likely that the use of e-mail is more securethan the use of portable or cellular telephones because of thedifficulty of interception. It is certainly true that e-mail isinherently more secure than ordinary mail since it is deliveredright to the computer of the recipient. However, authenticationissues are probably more difficult to resolve in e-mailcorrespondence, unless encryption is used (see "Encryption:Prudence or Paranoia?").

Employer-Employee Issues
It is generally agreed upon that e-mail is owned by theemployer if it is created on the employer's system. If e-mail isreceived on the employer's system, it depends upon the purpose,but the employer will be within its rights in monitoring it.

Most employee-employer issues can be resolved by a writtenpolicy, and more employers are creating such policies. Writtenpolicies can head off potential liability problems, as well asresolve ownership issues.

Offering Legal Advice on the Internet
Is the e-mail that you post to a Usenet Newsgroup or toanother citizen of the Internet considered legal advice? Can youprotect yourself by the use of waiver language attached to yoursignature? Generally, there is no agreement on whether waiverlanguage will effectively protect a lawyer who renders an opinionin an e-mail message. One of the dangers of e-mail communicationis that it seems so informal that the attorney-clientrelationship can be created without specific intent.

Currently, some lawyer discussion groups are grappling withthe advisability of waiver language appended to electronicsignatures in e-mails to List Serves and newsgroups. The consensusis that it is unlikely that waiver language in a message postedto a public newsgroup or List Serve will protect a lawyer who isfound to be offering legal advice. Such "inadvertent" liabilitysuggests that public postings be carefully made, if at all.

Jurisdiction
It is still unclear whether an e-mail message sent to aclient or prospective client in another jurisdiction constitutesthe practice of law in that jurisdiction. It is also as yetundetermined whether "spamming" e-mail (unsolicited advertising)is subject to the lawyer advertising regulations of the state inwhich the e-mail message is received. These issues deserveconsideration before an e-mail is sent.

Richard M. "Rick" Georges is a lawyer who serves St. Petersburgand all of Florida. He practices in the areas of real estate,business/corporate, and estate planning/probate. A proponent ofthe efficient use of technology by lawyers, he can be reached bye-mail at rgeorges@ix.netcom.com. His Website address ishttp://www.review.net/futurelaw.

From Solo, Fall 1996, ABA General Practice, Solo and Small FirmSection. Copyright 1996 American Bar Association.

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