The Standard for

Email CommunicationsPosted on 05/04/2015

What is the standard for electronic client communications? Can lawyers freely

use email, without a worry or care about encryption?

In Odds & Ends Safeguarding Client Information in a Digital World, Oregon

State Bar General Counsel Helen Hierschbiel sets us straight:

The first ethics opinions that addressed the use of electronic

communications prohibited lawyers from using cell phones and unencrypted

e-mail. More recently, ethics authorities condone the practice, recognizing

that the expectation of privacy in these modern methods of communication

is comparable to and as reasonable as that of older methods of

communication. For example, ABA Formal Ethics Op 99-413 (1999) states:

E-mail communications, including those sent unencrypted over the

Internet, pose no greater risk of interception or disclosure than other

modes of communication commonly relied upon as having a

reasonable expectation of privacy The risk of unauthorized

interception and disclosure exists in every medium of communication,

including e-mail. It is not, however, reasonable to require that a mode of

communicating information must be avoided simply because

Oregon Law Practice ManagementPractice Management Tips for Oregon Lawyers

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interception is technologically possible, especially when unauthorized

interception or dissemination of the information is a violation of [the

law].

Does this mean lawyers get a free pass to use unencrypted email?

The answer is no, as Helen points out. Special precautions need to be taken if:

The information to be transmitted is particularly sensitive The contents of the email are subject to a confidentiality agreement The client instructs the lawyer to avoid using email

Can a client waive the security risks associated with unencrypted email?

Yes. If a client requests it, a lawyer may be allowed to use a particular type

of electronic communication notwithstanding expectations of privacy in the

communication method.

What role does metadata play?

As Helen notes, metadata may be a bigger danger than unauthorized

interception of email messages:

[C]ompetent representation requires that lawyers understand what

information may be hidden in documents that they plan to send by e-mail so

that appropriate steps can be taken to protect against inadvertent

disclosure of what could be confidential or sensitive information. See, e.g.,

Arizona Ethics Op 07-03(2007) (lawyer must take reasonable precautions

to prevent communication of metadata containing client information) and

ABA Formal Op 06-442.

Since Helens article was published, Oregon has issued its own metadata

opinion: Competency: Disclosure of Metadata, OSB Formal Opinion 2011-187.

Where does this leave us with encryption?

If your clients have consented to use of unencrypted email (or dont care) and

your messages are not particularly sensitive or subject to a confidentiality

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agreement, why should you give a whit about encryption? In a phrase: ease of

use.

What used to be difficult is no longer.

In the article Encryption So Easy a Lawyer Can Do It, Bob Ambrogi discusses

three incredibly simple solutions that allow lawyers to send encrypted

messages. No more clunky interface requiring the sender to transmit keys

before the recipient decrypts the message. No more need for both parties to

use the same software. (Although a simple plug-in may be needed, depending

on the software you choose.)

With secure cloud-based solutions like Enlocked, Virtru, or Delivery Trust from

Identillect, Ambrogi concludes:

What all three programs have in common is that they make encryption as

easy as the push of a button. If you use email to communicate with clients

or colleagues about sensitive matters and what lawyer does not? you

have no excuse not to encrypt.

[All Rights Reserved 2015 Beverly Michaelis]

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