Committee on Legal Ethics and Professional Responsibility
(opinion of only one member of the committee – Kevin M. French)
WARNING: It is unclear if it has been withdrawn
Topics: Safety Measure to Use in E-mails.
From the Opinion:
“E-mail does not appear to differ materially from current means of communication employed by lawyers to the extent that a new set of rules is required, or such that its use should be discouraged. E-mails, however, appear to involve certain risks that are not present in other forms of communication and some different treatment is advisable…A lawyer generally is not obligated [under Rule 1.6] to take all available measures to ensure confidentiality unless the matter is so sensitive and the potential for harm to the client is so great that such measures are necessary under the circumstances…[while] for most matters…everyday measures are sufficient…”
In conclusion, because the risk of interception is not a significant danger and in the majority of e-mails “there is little potential for harm to the client is the communication is intentionally or inadvertently intercepted”, while, on the other hand, “encryption is not commonly available of ready-to-use.” The latter can change, however.
The opinion concludes that (1) “A lawyer may use-emails to communicate with or about a client without encryption”; (2) “A lawyer should advise a client concerning the risks associated with the use of e-mail and obtain the client consents either orally or in writing”; (3) “A lawyer should not un-encrypted email to communicate information concerning the representation, the interception of which would be damaging to the client, absent the client’s informed consent after consultation”
The full text is available for PA members only. Contact the PA Bar for a copy of the opinion.
Related Document: Do I always need to encrypt my correspondence with clients?