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In March of this year, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion No. 99-413 “Protecting the Confidentiality of Unencrypted E-Mail.” The committee analyzed the level of security offered by various types of e-mail systems compared with the more traditional means of transmitting client communications – mail, telephone and facsimile. The committee looked at both the current state of the technology and current state of the law regarding interception of confidential communications.
Using Unencrypted E-Mail
While recognizing there is a chance that an e-mail may get misdirected or be obtained by a hacker, there is also a risk of having your telephone illegally wiretapped or accidentally dialing the wrong number when sending a fax. “The risk of unauthorized interception and disclosure exists in every medium of communication, including e-mail. It is not, however, reasonable to require that a mode of communicating information must be avoided simply because interception is technologically possible, especially when unauthorized interception or dissemination is a violation of law.” Intercepting e-mail is subject to both civil and criminal penalties per the revised Electronic Communications Privacy Act (18 U.S.C.A. 2510, et seq). If the inadvertent recipient is another attorney, they are bound to return it unread to the sender (ABA Formal Opinions 92-368 and 94-382).
Based on their analysis, the committee found that, “A lawyer may transmit information relating to the representation of a client by unencrypted e-mail sent over the Internet without violating the Model Rules of Professional Conduct (1998) because the mode of transmission affords a reasonable expectation of privacy from a technological and legal standpoint.”
There are situations, however, which may require more than just “a reasonable expectation of privacy.” In such cases where ” the sensitivity of the communication, the costs of its disclosure” indicate a higher level of security, “the lawyer should consult the client as to whether another mode of transmission, such as special messenger delivery, is warranted. The lawyer then must follow the client’s instructions as to the mode of transmission.”
The full text of the opinion is posted at www.abanet.org/cpr/fo99-413.html and should be read in its entirety. In addition to the issues covered in this article, the opinion addresses such issues as the use of cellular phones and whether privilege is retained when e-mail is used. What We Use
What level of security does Atkinson-Baker use in its transmissions to its clients? For normal business communications, our e-mail is not encrypted. If we send you a transcript by e-mail, it is virus-protected and encrypted and can be password protected upon request. If you use our new on-line service to view your calendar information (see pp. 2-3), you will be doing it through a secure site using high-level (128 bit) encryption. (This is the level of security that is so good that, until the Ninth Circuit’s decision in May, was illegal to export because the federal government didnt want hostile parties to use it to encode their messages.)