In 1999, the American Bar Association issued Formal Opinion 99-413 in which it stated, "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. The same privacy accorded U.S. and commercial mail, land-line telephonic transmissions, and facsimiles applies to internet e-mail. A lawyer should consult with the client and follow her instructions, however, as to the mode of transmitting highly sensitive information relating to the client's representation."
This opinion, along with similar statements by state ethics bodies, have encouraged attorneys to heavily rely on e-mail to communicate with clients about confidential matters. Even where attorneys or clients might prefer to use encryption, this ethical conclusion has reduced the incentive for doing so. Given how difficult it can be to implement reliable, universal encryption across platforms in use by both lawyers and their clients (for example, making sure an encrypted e-mail message can be read and responded to either at the attorney's desk or on her smartphone without a problem, or managing public and private key databases for two-way encryption), this has been somewhat of a relief for practitioners and their IT colleagues alike.
More recently, technological evolution and troubling decisions from courts denying or questioning privilege protection for some unencrypted attorney-client e-mails (as with the Scott v. Beth Israel case in New York, Stengart v. Loving Care in New Jersey, and others) have reopened the question of whether e-mail must be encrypted to be reliably privileged.
At the same time, a new expansion of third-party cloud computing resources (for remote storage, smartphone backup, application use, and virtual law office function) has increased the number of parties who may have access to attorney communications and work product, often without a written confidentiality agreement to require nondisclosure.
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Source: law.com
By: Jonathan Ezor
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