by Keith A. Call
Like most people, I have a love-hate relationship with my e-mail. I love the convenience of communicating with groups of people at once, especially at irregular times. But I absolutely hate how e-mail tries to take over my law practice and my life.
A friend recently told me that he was on the verge of “e-mail bankruptcy.” He was so overloaded with e-mails that he was simply going to delete all of them – read and unread. Anyone who had a message they really wanted him to read was going to have to send him a new “claim.”
Love it or hate it, e-mail transmission is here to stay, at least until they perfect telepathic transmission. In order to maximize e-mail efficiency and minimize e-mail misery, here are some ideas that will help keep your attorney-client e-mails private instead of seeing them listed as your adversary’s “Exhibit A.”
E-mail Communication is Allowed
Fortunately, Utah recognizes that generally there is a reasonable expectation of privacy when communicating through unencrypted e-mail. See Utah State Bar Ethics Advisory Op. Comm., Op. 00-01 (2000). So, as a baseline, lawyers can transmit confidential client communications through e-mail without violating the confidentiality requirements of Utah Rule of Professional Conduct 1.6. See Utah R. Prof’l Conduct 1.6.
That is not a free pass, however. As explained below, careless e-mail communication can still get you into ethical trouble.
Lawyers Must Warn Clients about the Risks of E-mail
Imagine lawyer “Larry” is advising client “Carl” about a potential dispute Carl has with his employer “BigCo.” Should Larry advise Carl about the risks of using BigCo’s computers or e-mail accounts to communicate with Larry? The answer is, “Absolutely!”
The American Bar Association recently issued an opinion that concluded:
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.
ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 11-459 (2011).
Many employers have policies that allow the employer to access and review all activity on company computers and servers. That may include the “private” communications a lawyer has with his or her client about the client’s dispute with the client’s employer. If you don’t warn your clients when there is a significant risk that others may access the client’s e-mails, don’t be surprised if you end up seeing your own e-mails on your opponent’s exhibit list.
Must Adverse Third Parties Disclose the Receipt of Private E-mails?
Now, imagine BigCo gathers all of its electronically stored information and delivers it to BigCo’s outside litigation counsel “BigLawyer.” Upon review, BigLawyer discovers BigLawyer possesses dozens of “private” e-mails between Larry and Carl. Is BigLawyer obligated to disclose that BigLawyer possesses those “private” e-mails?
Utah Rule of Professional Conduct 4.4(b) provides, “A lawyer who receives a document relating to the representation of the lawyer’s client and knows or should know that the document was inadvertently sent shall promptly notify the sender.” Utah R. Prof’l Conduct 4.4(b). According to a recent opinion from the American Bar Association, Rule 4.4(b) would not require BigLawyer to return or even disclose the fact that she possesses Larry’s and Carl’s “private” e-mails. See ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 11-460 (2011). The opinion reasons that the e-mails were not “inadvertently sent.” See id. Rather, both the employee and his lawyer intentionally sent the e-mails. See id. Apparently, the fact that they exchanged the e-mails using the employer’s computer and e-mail account eliminated the reasonable expectation of privacy. See id. The opinion concludes that any such disclosure obligation is governed by the applicable rules of civil procedure, court decisions or other law, and not the Rules of Professional Conduct. See id. (Note that ABA opinions are instructive for Utah lawyers, but they may not be binding.)
The lesson here is to pay attention to what computers and what e-mail domains you and your client use to communicate. If there is a significant risk that an employer or other third party may have access to the e-mails, play it safe and use a different mode of communication. At a minimum, you have an ethical obligation to advise your client of the risks. Finally, consider how these rules might apply to other forms of communication, such as text messages using an employer-issued smart phone.