Email Anxiety: Revisiting Client Confidentiality & Communication Via Email

Although email has become a common means of communicating among lawyers and their clients, questions about its viability are once again being addressed as a result of increased incidences of  hacking and NSA surveillance.  The Texas Professional Ethics Committee recently released an opinion in which it reinforces the reasonable use of email by lawyers when communicating confidential information, but acknowledges the implications of current technology. The opinion cautions that there are certain situations in which an attorney should consider the nature of the confidential information and whether email should be encrypted or may not be a reasonable means of communication. The opinion provides the following examples:

1. communicating highly sensitive or confidential information via email or unencrypted email connections;

2. sending an email to or from an account that the email sender or recipient shares with others;

3. sending an email to a client when it is possible that a third person (such as a spouse in a divorce case) knows the password to the email account, or to an individual client at that client’s work email account, especially if the email relates to a client’s employment dispute with his employer (see ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 11-459 (2011));

4. sending an email from a public computer or a borrowed computer or where the lawyer knows that the emails the lawyer sends are being read on a public or borrowed computer or on an unsecure network;

5. sending an email if the lawyer knows that the email recipient is accessing the email on devices that are potentially accessible to third persons or are not protected by a password; or

6. sending an email if the lawyer is concerned that the NSA or other law enforcement agency may read the lawyer’s email communication, with or without a warrant.

The opinion suggests that in the event that any of these circumstances are present then the lawyer should discuss the risks of email communication containing confidential information with his client and either obtain consent or decide upon another means of communication.

To read the opinion click here.

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