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In the face of the explosive use of the Internet, the legal community is being confronted with integrating technology into the practice of law in order to best serve clients and perform cost-efficient and high-quality services. One of the most widespread uses of the Internet and computers is electronic mail (email). Email refers to the transmission of messages electronically either within a business, through a local area network or an intranet system, or externally, by way of commercial mail services (i.e., America Online, CompuServe, or MCI Mail) or the Internet.
This article addresses the use of email as a mode of communication for counseling clients and whether email communications are afforded protection from disclosure under the doctrine of attorney-client privilege. A related discussion addresses whether use of email is consistent with attorneys' ethical obligations to maintain the confidentiality of communications with their clients, including whether email messages may be sent by ordinary means or whether special security precautions such as encryption are necessary to comply with such obligations. Summaries are provided of the opinions of the American Bar Association (ABA) and ethics committees in the various jurisdictions that have taken a position on email communication with clients. (1)
Email has numerous benefits that can make it an attractive mode of communication, at times more practical and economical than telephone or facsimile transmissions. Most commercially available software products providing email capabilities are fairly easy to use and require minimal computer knowledge on behalf of the sender. Email can be transmitted quickly and without undue expense, especially over long distances, since no physical delivery is required. Emails can be forwarded to multiple recipients simultaneously. Emails can be sent from remote locations, either off a laptop used by an attorney when out of the office, or from the home office of the growing number of law firm attorneys who telecommute.
The contents of email transmissions or attachments to transmissions, including documents, can be circulated and reused by the recipients in other documents. Attachments may also be revised by the recipients electronically and then returned to the sender, in effect creating a collaborative effort to get documents into final form. (2)
Since there is generally no restriction on the length or size of email transmissions, subject to the technical capabilities of the platform supporting the computer system, email can be used to transmit substantive messages rather than the common practice in our profession of "phone tag." Also, as opposed to either telephone messages or in-person conversations, email transmissions may be stored and printed out to create a written record of the communication and to be included in the attorney's file related to representation of the client. Printing out email messages prior to transmission gives the author the opportunity to review and reconsider what is about to be said, a luxury not afforded in live-time communications. This is the case since, by its nature, email is asynchronous, rather than having the sender and recipient communicating simultaneously. (3)
Finally, the most compelling reason that attorneys use email transmission is the fact that clients are increasingly demanding it, either directly or by implication. The practice of law is a service industry and lawyers are compelled to take action to best adapt their services to their clients' businesses. With the proliferation of those entering the profession and the rapid disappearance of the model of the long-term attorney-client relationship, law firms are faced with the drive to provide their services on a cost-efficient basis in order to compete for clients. As clients continue to implement technologies in their businesses, attorneys servicing corporate clients are increasingly required to offer email as one of their standard modes of communication.
Email is not without problems, however. One of the most significant concerns with email, viewed by both the general public and the legal profession, is the concern for security. The Internet is not a confidentially secure mode of transmitting information. The Internet is an open network because the system is susceptible to tapping. Instances of transmission and the content of messages themselves are potentially subject to monitoring, interception, and alteration. "Unlike postal mail, simple e-mail generally is not `sealed' or secure, and can be accessed or viewed on intermediate computers between the sender and recipient (unless the message is encrypted)." (4)
As a general matter, it should be kept in mind that one of the initial purposes for the development of the Internet was for governmental use and, therefore, security measures are already contemplated in the system. Also, the technical means of transmission may itself impair the potential to intercept and modify messages. Upon leaving the originating site, a message is electronically broken into components, referred to as packets, and sent through random paths to intermediary spots, called routers, all targeted to reach the same destination. At the destination, the packets are then reassembled to recreate the entire message.
While this process diminishes potential eavesdropping of messages while en route, it does not alleviate security considerations at both the point of transmission and the point of destination, where the messages may be subject to compromise by unintentional recipients or hackers. For those law firms doing business with clients that, by their size or reputation, are attractive to hackers, the client's system may be more susceptible to third-party interception.
Finally, there are security considerations within the authorized locations. Depending on the levels of security, access controls, and firewalls within each organization, messages may be intercepted by curious or disgruntled employees. This raises special concerns when an attorney is communicating with an officer of the client regarding sensitive matters, such as a proposed sale of the business or employee termination issues.
Unauthorized interception of email transmissions is illegal under the Electronic Communications Privacy Act of 1986 (ECPA), which extended the coverage of the Federal Wiretap Statute of 1968 to include electronic communications. (5) The ECPA creates a federal offense for intercepting, tampering with, or disclosing electronic transmissions, giving rise to both criminal and civil sanctions. (6) The legislation does make exception to the prohibitions in permitting certain third parties to have access rights. For example, Internet service providers may intercept, disclose, or use electronic communications in the normal course of business while engaged in activities incident to rendering their services; to protect their own rights; for service quality control checks; or pursuant to court order, warrant, or the direction of the Attorney General in accordance with the ECPA's provisions authorizing governmental surveillance. (7)
The main focus of security concerns for attorneys relates to security for those email transmissions which are of a confidential nature or which purport to transmit information that is subject to the attorney-client privilege. (8) Messages may also be compromised by computer viruses. Further, law firms must be cautious to avoid "crackers" from gaining unauthorized access to the firm's computer system through the Internet connection. (9) Attorneys can counter these concerns by implementing protective measures. The most commonly discussed method for protecting security of messages themselves is encryption, an electronic lock and key technology that limits access to messages to the sender and the authorized recipient. (10) Access to messages can also be limited by utilizing passwords that are periodically changed. Security precautions to protect system-wide integrity include the following:
* Implementing firewalls to set up electronic barriers to entry;
* Installing virus scanning and protection programs;
* Modifying access codes for Internet connectivity; and
* Establishing direct modern links or leasing dedicated private phone lines to permit law firms and clients to communicate over closed lines rather than the open network of the Internet. (11)
In addition to the security considerations, several other drawbacks of email must be addressed in making a determination regarding the appropriateness of the medium. Generally, the originator and source of email transmissions cannot be verified unless the system has been specifically designed to include authentication procedures. It is relatively easy to "spoof" transmissions, making messages appear to be from someone else. Also, messages are not traceable over the Internet and most systems cannot provide confirmation that a message has been received by the intended recipient absent use of a special tracking software program or delivery service.
The informality of email can potentially diminish the level of professionalism in dealing with clients. For instance, when issues are presented by clients by email attorneys should be cautious not to respond reflexively without giving consideration to whether or not the legal advice transmitted is accurate and complete, as well as avoiding potentially offensive remarks. The spontaneity of the process (12) should not interfere with deliberateness required in counseling clients. The fact that email and Internet communications, by their technical nature, can take place at such a fast pace and to a broad audience simultaneously may be a drawback in this respect over more traditional forms of written communication, which by their timing incorporate a natural delay before mass distribution, giving an opportunity for greater reflection. At times, it may be more appropriate to send an email asking for more information or scheduling a telephone conversation or meeting, to create an interactive forum that may provide the attorney with a better understanding of the client's concerns and motivations in requesting the legal advice.
The use of email as a mode of communication by attorneys is another example of how the practice of law at the turn of the century often compels attorneys to have certain technical knowledge of computer systems. When documents are transmitted by mail or facsimile, no consideration is given to the type of word processing system used by the sender. Now, because of the increasingly common practice of attaching documents to emails, the compatibility of word processing systems between the law firm and the client may be critical in having an attorney be able to effectively review and revise documents transmitted by clients. At a minimum, law firms must arrange for their technical support staff to advise the attorneys as to the basic requirements to meet a client's technical needs.
Balancing all of the benefits of email versus the security and practical concerns, the overall trends support the growth of the use of email in communicating with clients and colleagues, especially with respect to non-confidential materials. A 1998 survey conducted by the Legal Technology Resource Center of the American Bar Association (ABA) found extensive use of technologies by attorneys in solo practice or small law firms, which segment constitutes almost 75 percent of lawyers in private practice in the United States. When questioned regarding their use of the Internet and online services, 53.6 percent of survey respondents reported using the Internet to communicate with clients and 21.5 percent of those surveyed use the Internet to collaborate with clients on documents. Three-quarters of those firms surveyed, however, indicated that they choose not to transmit sensitive information by email. (13) In a comparable ABA survey of the 500 largest private law firms, 60 percent of the respondents stated that they do not transmit sensitive information across the medium. (14)
In June of 2000, the Legal Technology Resource Center conducted a random telephone survey of attorneys regarding email usage that found 94 percent of the attorneys surveyed used email in their practices. (15) Usage included direct communications with clients, at 71 percent of respondents; use with co-workers by 80 percent of those responding; use with professionals outside of their offices by 69 percent of those answering the survey; and 82 percent of those participating in the survey indicating that they use email for personal matters. When questioned about using email to send confidential information to recipients outside of their firms, 41 percent of respondents refrained from such practice, while others indicated that they address confidentiality issues by inclusion of an automatic disclaimer, doing nothing, obtaining client consent, or using encryption.
Discoverability of Email and Application of the Attorney-Client Privilege
Federal Rule of Civil Procedure 26(b)(1) permits broad discovery during the course of litigation and provides that "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action...." Since email messages are computer records that have the capability of being saved and subsequently accessed, they are subject to discovery. (16) Our courts have routinely held that emails are a proper subject of discovery. (17)
In fact, email messages have taken a prominent position in recent highly publicized litigations, including the government's antitrust action against Microsoft Corporation. (18) The informality of email as a mode of communicating often contributes to the incriminating nature of such messages. Emails thus may not only be of evidentiary value in a litigation but at times are the vehicle for the actions giving rise to the litigation itself, such as the situation of an off-color or inappropriate "joke" email contributing as a basis for allegations of a discriminatory or hostile workplace in employment litigation. Accordingly, when parties are engaged in the discovery phase of …