In today's business world, e-mail is virtually indispensable. Because e-mail is such an instantaneous, affordable, and unobtrusive form of communication, e-mail has become the communication medium of choice for many in the legal world. But are attorneys and clients aware of the possible legal and ethical consequences of communicating through this medium?
The Internet is not always a safe place. E-mail messages must often travel through several foreign computer systems before the messages reach their destination. To make matters worse, e-mail predators lurk in cyberspace and with special software, hackers can access e-mail messages.
Sniffers, Spoofers, and Waivers
"Sniffer" programs search for key words, like an e-mail address, and store these messages in a hacker's computer. "Spoofing" programs allow a hacker to configure her machine to mimic an intended recipient's machine. A "spoofer" can then intercept an e-mail message, concoct some false reply, or doctor the e-mail and send it to the intended recipient. The results can be deleterious. With all this potential uncertainty in cyberspace, are lawyers and clients implicitly waiving their attorney-client privilege by communicating through this insecure medium?
The attorney-client privilege protects the client from compelled disclosure of communications with his or her attorney made in confidence, unless the client has waived the privilege. For the attorney-client privilege to apply, the attorney and client must communicate in confidence for the purpose of seeking or rendering legal advice. A client and attorney must also subjectively expect that their communications are confidential, and the confidentiality expectations must be objectively reasonable. If a third party is present during these communications, the communications are presumed to be non-confidential, and the attorney-client privilege is undermined and possibly waived. The question is whether e-mail communication, in light of the potential for unauthorized interception, is secure enough to satisfy the requirements of the attorney-client privilege.
General Agreement Regarding Privilege
Although no court has directly answered this question, many commentators agree that e-mail communications between attorneys and clients will still be privileged, despite the possibility of interception. The American Bar Association Standing Committee on Ethics and Professional Responsibility has recently issued an ethics opinion approving the use of e-mail to transmit client documents.
Although the ethics opinion focuses more on whether an attorney violates the Model Rules of Professional Conduct by communicating with a client through e-mail, the opinion is still significant. The Committee concluded that e-mail transmissions offer a reasonable expectation of privacy even though they may be susceptible to interception.
Furthermore, the threat of e-mail interception is similar to the threat that a person would eavesdrop on a lawyer's telephone conversation with her client. Courts have held that willful acts by third parties should not deprive clients of the attorney-client privilege. So if an e-mail communication between an attorney and her client is unlawfully intercepted by a third party, presumably, the attorney-client privilege should remain intact.
Finally, federal law makes such unauthorized interception of e-mail illegal. The Electronic Communication Privacy Act (ECPA) makes it unlawful to "intentionally access without authorization a facility through which an electronic communication service is provided." As such, e-mail is protected from interception by federal law in much the same way written mail is protected from interception, and telephone and fax messages are protected from interception by the Federal Wiretap Act.
Although attorneys can, for the time being, continue to communicate with clients through e-mail without worrying about the waiver of attorney-client privilege, or an ethics code violation, attorneys should still consider which type of documents and communications should be sent to clients through e-mail. At a minimum, attorneys should consult with their clients when transmitting highly sensitive materials to determine if another mode of delivery would be more prudent, or whether the e-mail should be encrypted before being sent. However, if attorneys and clients use caution and discretion in their e-mail transmissions, they can be confident that their weighty communications will not become unprivileged, even if they find their way into unwelcome hands.