UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 97-08
The South Carolina Bar Technology Committee has requested that Advisory Opinion 94-27 be re-examined in light of the current state of technology.
Questions:
May confidential client communications be transmitted via electronic mail (e-mail)?
Summary:
There exists a reasonable expectation of privacy when sending confidential information through electronic mail (whether direct link, commercial service, or Internet). Use of electronic mail will not affect the confidentiality of client communications under South Carolina Rule of Professional Conduct 1.6.
Opinion:
The duty to maintain client confidences under Rule 1.6 implies the duty to use methods of communication that provide reasonable assurance that information will be and remain confidential. This duty was implicated in Advisory Opinion 94-27, when this Committee stated: It is the opinion of this committee that unless certainty can be obtained regarding the confidentiality of communications via electronic media, that representation of a client, or communication with a client, via electronic media, may violate Rule 1.6, absent an express waiver by the client.
This opinion is correct in that an attorney must have some certainty or reasonable expectation that a means of communication will remain confidential. Since Opinion 94-27 was issued, the use of e-mail has become commonplace, and there now exists a reasonable level of "certainty" and expectation that such communications may be regarded as confidential, created by improvements in technology and changes in the law.
There are essentially three means by which e-mail is transmitted by computer: private networks, semi-private networks, and the Internet. Generally, the distinctions between these networks are as follows.
Private networks operate on a system accessible only by other computers on the same system (e.g. within the same office). It is a closed system, and messages sent from one computer go directly to another computer with no stops in between. This type of communication has been held to maintain a reasonable expectation of privacy. United States v. Keystone Sanitation Co. 903 F. Supp. 803 (M.D. Pa. 1995). Any inadvertent transmission or intentional interception within a private network would have no effect on confidentiality because all persons with access to that network (i.e. law firm attorneys and employees) owe a duty of confidentiality to all firm clients.
Semi-public networks or commercial services (America On-Line, Compuserve) operate by providing e-mail access to anyone who pays a fee. Messages are sent from one computer over a land-based telephone connection to the commercial network where they are stored and subsequently accessed via password by another member of the service. E-mail stored on such a commercial network has been held to be subject to a reasonable expectation of privacy. The court in United States v. Maxwell, 43 Fed. R. Serv. 24 (U.S.A.F. Ct. Crim. App. 1995) focused upon passwords assigned to network subscribers, holding that "there was virtually no risk that appellant's computer transmissions could be received by anyone other than intended recipients."
The Internet system operates in a similar fashion using land-based telephone lines to transmit information through multiple computer networks ("routers") before reaching a final destination. The "router" networks are owned by third persons who have the capability to monitor the information passing through their computers. While this may appear to be a threat to the confidentiality of the communication, it is no greater risk than a telephone operator's ability to monitor voice transmissions during a land-based telephone call. Such interception or monitoring of e-mail communications for purposes other than assuring quality of service or maintenance is illegal under the Electronic Communications Privacy Act of 1986, as amended in 1994. See 18 U. S. C. §2511(2)(a)(i).
In addressing the issue of whether information transmitted via e-mail through any of the above-described networks is confidential, it is helpful to examine the confidentiality of other media used in client communications. It is beyond argument that confidential communications may be transmitted via land based telephone, United States Mail, private carrier, express mail, and even facsimile. The Fourth Circuit held in 1995 that cordless phone transmissions were not protected by the Electronic Communications Privacy Act of 1986 in In Re Askin, 42 F. 3d. 100 (4th Cir. 1995). The 1994 amendments to the Act, however, eliminated from the Act the language excluding cordless phones from protection, presumably allowing such transmissions to be considered confidential.1 See 18 U. S. C. §§2510(1) and 2512(A). Cellular telephones, because of the perceived risk of interception, have been held to not enjoy confidential status by at least five other ethics advisory committees,2 notwithstanding the illegality of intercepting such transmissions.
The confidentiality of e-mail communications should not be compromised through the use of private networks. A law firm's network transmitting information through a private, land-based telephone line to a client's private network does not risk interception or any other waiver of the confidence any more than a telephone call or facsimile transmission would.
Likewise, e-mail transmissions via commercial networks or the Internet maintain confidentiality. While there exists a potential for communications to be intercepted, albeit illegally, from a commercial network mailbox or an Internet "router", the Committee does not believe such a potential makes an expectation of privacy unreasonable. The same potential exists for the illegal interception of regular mail, the interception of a facsimile, and the unauthorized wiretapping of land-based telephone.
The Committee concludes, therefore, that communication via e-mail is subject to a reasonable expectation of privacy. Because the expectation is no less reasonable that the expectation of privacy associated with regular mail, facsimile transmissions, or land-based telephone calls and because the interception of e-mail is now illegal under the Electronic Communications Privacy Act, 18 U. S. C. §§2701(a) and 2702(a), use of e-mail is proper under Rule 1.6. Accord, Illinois State Bar Assn. Advisory Opinion No. 96-10; New York State Bar Assn., CPLR 4547 (January 24, 1997).
The Committee notes that a finding of confidentiality and privilege of such communications should not end the analysis. An attorney owes a client a duty of reasonable care in keeping information confidential. There exists information that a prudent attorney would be hesitant to discuss by facsimile, telephone, or regular mail. A lawyer should discuss with a client such options as encryption in order to safeguard against even inadvertent disclosure of sensitive or privileged information when using e-mail.
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1Practitioners are warned that notwithstanding statutory changes, cordless transmissions remain susceptible to interception through other cordless phones, FM radios, and even baby monitors.
2See Illinois State Bar Assoc. EP. No. 90-07; Massachusetts Ethics Op. No. 94-5 (1994); New York City Bar Ass'n. EP. No. 1994-11; Iowa Ethics Op. No. 90-44 (1991); and New Hampshire Ethics Op. No. 1991-92/6 (1992).