New ABA Ethics Opinions Discuss Lawyer Obligations When Communicating With Clients Via Email, Text Messages And Other Electronic Communications

Last month, the Standing Committee on Ethics and Professional Responsibility of the American Bar Association (ABA) issued two new ethics opinions clarifying an attorney’s duty to protect confidential client information when email, text messages or other electronic communications are sent or received. ABA Formal Ethics Opinion 11-459, issued on August 4, 2011, is entitled “Duty to Protect the Confidentiality of E-mail Communications with One’s Client.” The companion opinion, ABA Formal Ethics Opinion 11-460 issued on the same day, is entitled “Duty when Lawyer Receives Copies of a Third Party’s E-mail Communications with Counsel.”

Under existing ethics rules, lawyers must take reasonable precautions to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure to third parties. Rule 1.6(a) of the ABA Model Rules of Professional Conduct requires a lawyer to refrain from revealing “information relating to the representation of a client unless the client gives informed consent.” The comments to that rule recognize a lawyer’s duty to undertake appropriate actions to protect the confidentiality of client information. The new ethics opinions extend a lawyer’s duty to protect confidential client information to all types of electronic communications between lawyers and their clients involving e-mail, text messages and the like.

ABA Formal Ethics Opinion 11-459 focuses on a lawyer’s duty to protect the confidentiality of substantive communications between lawyer and client via electronic media. The opinion imposes a new obligation on lawyers to provide “appropriately tailored advice” to clients who, either because they are sending and receiving email on their employer’s computer or for some other reason, bear a greater risk that third parties may gain access to the confidential client information. The opinion states as follows:

A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, to which a third party may gain access. … Whenever a lawyer communicates with a client by e-mail, the lawyer must first consider whether, given the client’s situation, there is a significant risk that third parties will have access to the communications. If so, the lawyer must take reasonable care to protect the confidentiality of the communications by giving appropriately tailored advice to the client.

Similarly, Formal Ethics Opinion 11-460 discusses a lawyer’s ethical duty upon receiving copies of emails, text messages and the like between an opposing party and the opposing party’s lawyer. The opinion confirms that no ethical rule requires the lawyer to notify opposing counsel of the receipt of the communications. However, the rule recognizes that court decisions, civil procedure rules, or other laws may impose a notification duty. If the law governing notification is unclear, the new ethics opinion allows the lawyer to disclose that he/she has retrieved the email or test messages between the opposing party and his/her attorney to the extent the lawyer reasonably believes it is necessary to do so to comply with the relevant law. If no law can reasonably be read as establishing a notification obligation, however, then the decision whether to give notice must be made by the lawyer’s client, and the lawyer must explain the implications of disclosure, and the available alternatives, as necessary to enable the client to make an informed decision.

Discussing the notification duty in the context of the employer-employee relationship, the opinion states as follows:

Even when there is no clear notification obligation, it often will be in the employer-client’s best interest to give notice and obtain a judicial ruling as to the admissibility of the employee’s attorney-client communications before attempting to use them and, if possible, before the employer’s lawyer reviews them. This course minimizes the risk of disqualification or other sanction if the court ultimately concludes that the opposing party’s communications with counsel are privileged and inadmissible. The employer’s lawyer must explain these and other implications of disclosure, and the available alternatives, as necessary to enable the employer to make an informed decision.

ABA Formal Ethics Opinion 11-459 can be found here.

ABA Formal Ethics Opinion 11-460 can be found here.