This topic just doesn’t want to go away. It keeps resurfacing from time to time on various legal listservs. Most of the time it resurfaces because a lawyer receives an email with a ridiculously-worded disclaimer at the end which makes all sorts of demands upon the recipient. Of course, for firms which operate in more than one state, what may seems over-reaching in one state may be covering requirements in another.
It’s probably appropriate to re-examine the whole issue periodically, though. Case law tends to create evolutionary changes over time, particularly as new technologies are better understood. And also various Bars issue Formal and Informal Opinions on the topic from time to time.
Underlying this issue is that of attorney-client privilege. All attorneys have a duty to obtain client consent before revealing any confidential client information, regardless of the method of communication used. Additionally, some state bar associations recommend that attorneys get client consent before sending confidential information by email.
Because this is an ethical issue first and foremost, it is important that you be reminded that, at least in PA, members of the PA Bar Association receive free guidance in this area from Ethics Guru Louise Lamareaux.
Concerns about waiver of privilege from purposeful interception of email have all but disappeared. The Electronic Communications Privacy Act (ECPA) sets out the provisions for access, use, disclosure, interception and privacy protections of electronic communications. The law was enacted in 1986 and covers various forms of wire and electronic communications. ECPA prohibits unlawful access and certain disclosures of communication contents. Thanks to the ECPA, email communications over the internet have an expectation of privacy and therefore unlawful interception will not result in a waiver of attorney-client privilege.
Inadvertent disclosure of email is the other area of concern. It is as easy to misaddress an email as a fax. What are the repercussions for the sending attorney? What are the obligations of the receiving attorney? And what are the implications for attorney-client privilege?
States address this issue in basically one of three ways. At one end of the extreme is the requirement that emails be encrypted in order to preserve attorney-client privilege in the event of inadvertent disclosure. I believe Iowa is one of the few states which adopt this Rule.
In the middle ground is the suggestion that encryption be used, but a requirement that notification of risks to the client be made, that the client agree to the use of email as an acceptable method of communications, and that a disclaimer be included on all emails. Some of the states which have adopted this middle-ground rule include Alaska, Arizona, Colorado, Missouri, North Carolina and New York.
At the other end of the spectrum is the approach that email has an expectation of privacy, and does not require notice to or consent from client before use, and does not require encryption or disclaimer notices. Some of the states included at this end of the spectrum are Kentucky, Massachusetts, Minnesota, South Carolina, and Tennessee.
Where does Pennsylvania fall on this spectrum?
If you take a look at Informal Opinion 97-130 (September 26, 1997) you will see clearly that in PA the obligation is on the attorney to inform the client and obtain consent. The Opinion states in part:
Like many issues under the Rules of Professional Conduct, client consultation and consent plays a major role in the decision whether to use email and, if so, under what circumstances. A lawyer has complied with his or her ethical obligations if the risks and benefits associated with the use of email are explained to the client and the client consents. Lawyer and client together can agree to use email for all, some or none of their communications. They can also agree whether or not to use encryption.
The PA Opinion concludes:
1) a lawyer may use email to communicate with or about a client without encryption
2) a lawyer should advise a client concerning risks associated with the use of email and obtain the client’s consent either orally or in writing
[My opinion is that this should be memorialized in the Engagement Agreement.]
3) a lawyer should not use unencrypted email to communicate information concerning the representation, the interception of which would be damaging to the client, absent the client’s consent after consultation
4) a lawyer may, but is not required to, place a notice on client email warning that it is a privileged and confidential communication; and
5) if the email is about the lawyer or the lawyer’s services and is intended to solicit new clients, it is lawyer advertising similar to targeted direct mail and is subject to the same restrictions under the Rules of Professional Conduct.
What about the obligations of the receiving attorney? For that take a look at the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility Report No. 2000-200 INADVERTENT DISCLOSURES (June 9, 2000). In this report the committee reviews various opinions from ABA and other Bars, as well as its own previously-issued opinions. They note that Informal Opinions of members of the Committee, all issued since 1991, have generally favored the receiving lawyer’s at least notifying the sending lawyer of the inadvertent transmission. They also note that Opinions of most other states’ ethics bodies favor disclosure and/or return of materials in most situations.
Without stating each of the 4 conclusions in detail, the bottom line is that there is no specific Rule or formal opinion which establishes the requirements of the receiving lawyer. Conclusion 3 states:
In the absence of an amendment to the Rules or a formal opinion of this Committee, the Committee is of the opinion that the issue of professional responsibility of a lawyer receiving by inadvertence any confidential and privileged information from another lawyer, his client or other third person must as the Preamble to the Rule indicates “be resolved through the exercise of sensitive and moral judgment guided by the basic principles of the Rules.” The decision of the lawyer will depend on the view of the lawyer with respect to his or her obligations to the client under R.P.C. 1.3 and R.P.C. 1.4, the nature of the information, how and from whom the information was received, attorney-client privilege and work product rules, and common sense, reciprocity and professional courtesy.
Finally, should a disclaimer really be used? Well, this is a layperson’s opinion, and not legal advice. But in PA at least, since the obligations of the receiving attorney are so vague, it would seem the prudent thing to do. But a final note in this regard. You will notice that all disclaimers on faxes are included on the cover sheet, which effectively has them precede the confidential information. It seems that most firms use their autosignatures to append the disclaimer to the end of the email, which logic dictates would not afford the same protection. In order to get to the disclaimer, the recipient would first have to read the entire confidential document. One of the purposes of the disclaimer is to prevent the reading of the misdirected confidential document.
With that goal in mind, let me suggest that all disclaimers be included at the beginning of the email, not the end. This can be accomplished quite easily in one of two ways. First, you can create an autocorrect or autotext entry which you can quickly insert with a few keystrokes at the beginning of each email. Second, you can include it in your autosignature, but when you enter the text area of your email begin with a PAGE DOWN or CTRL+END command so that you type after your signature instead of before it.
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[...] I created a post the other day about email disclaimers. I was surprised at how many people privately emailed me to ask for samples. I thought everyone in the world already had a disclaimer of choice, but apparently not. [...]