Standing Committee on Ethics and Professional Responsibility
In Formal Opinion 11-459, the ABA Standing Committee on Ethics and Professional Responsibility draw from the Model Rules a new duty for lawyers: the duty to warn the client of potential confidentiality concerns, for example when the lawyer knows or should have known that the client is emailing from a work computer or an employer’s electronic device. In particular, the Opinion explains that:
“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, where there is a significant risk that a third party may gain access. In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party.”
Rules:
Rule 1.6(a) (confidentiality)
Rule 1.1 (competent representation)
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Our commentary:
Lawyer’s duty to warn the client that confidentiality is at risk when the lawyer knows or should have known that the client is sending communication from an unsecure device, for example an employer’s computer.
The opinion lists several cases in which the confidentiality of the lawyer-client communications can be jeopardized (often without the client being aware of): (i) when the client uses an employer’s computer, smartphone, or other telecommunications device, or an employer’s e-mail account to send or receive e-mails and the employer has policies reserving a right of access to employees’ e-mail correspondence. In fact, based on those policies, the employer may obtain access to the communications, and a third party may obtain access by issuing a subpoena to the employer; (ii) when the client receives or sends e-mails via a public computer (such as a library or hotel computer); (iii) when the client uses a borrowed computer; (iv) when the client uses a computer shared with other members of the family (such as a home computer) in case for example of a matrimonial dispute.
When the lawyer and his or her client communicate through the employer’s workplace device or system, it is the lawyer’s ethical duty to take precautions:
- advice to client that protecting the confidentiality of e-mail communications is important and that client should avoid using the employer’s device or system for sensitive communication (or maybe for all communication).workplace device or system for sensitive or substantive communications This advice should be given “as soon as practical after a client-lawyer relationship is established.” The duty to give this advise ensue when the lawyer knows or should have known that the client-employee will likely be using unsecured devices to communicate and there is the substantial risk that someone else will read the communication (example when a possible claim against the employer is an issue)
- as soon as the lawyer becomes aware (or should become aware) of the risk, he should take protective measures, among which for example the lawyer should refrain from sending communication to the business address of client
The employer-employee situation, however, is, as said, only an example.
The Committee reminds that lawyers have a more general obligation of activating themselves to protect confidentiality. The lawyer’s duty is first of all, a duty to “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.” Second, a duty to consider if “given the client’s situation, there is a significant risk that third parties will have access to the communications.” Third, if so, “the lawyer must take reasonable care to protect the confidentiality of the communications by giving appropriately tailored advice to the client.”