Vol. 75, No. 5, May 2002

Email and Cell Phone Use Okay, if ...

by Dean R. Dietrich

Question

Like many other attorneys, I use Internet email and my cell phone to communicate with my clients. Am I in danger of violating any Supreme Court Rules by doing this?

Answer

While the State Bar Standing Committee on Professional Ethics has not addressed this issue in an opinion, several other states have addressed this issue in formal and informal opinions.

The ABA Model Rules of Professional Conduct require confidentiality between attorney and client and place great emphasis on the requirement that the lawyer keep information presented by the client during the course of representation confidential in all respects. Wisconsin Supreme Court Rule 20:1.6 provides that a lawyer shall keep all information that is received from the client confidential and may only disclose the information if necessary as part of the representation of the client or under very limited circumstances when disclosure may or must be made to prevent other inappropriate conduct from occurring. The general rule of client confidentiality is:

"A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, ..."

Because of this rule, lawyers must at all times be aware of and comply with the confidentiality requirements when dealing with client information or client contacts. Under this rule, lawyers generally may use Internet email to communicate with a client but should be cautious to make sure that the client understands the potential for interception of email communication and use encryption in instances where the need for confidentiality is heightened. Lawyers also may use cell phones or cordless telephones provided there is not a significant risk of interception of the client communication.

Email communication. The use of email to communicate with clients has become common in today's technology-oriented world. The American Bar Association (through its Standing Committee on Ethics and Professional Responsibility) and several state ethics committees have concluded that a lawyer may transmit protected client information by email over the Internet without violating the client confidentiality rules. ABA Standing Committee Formal Opinion No. 99413 recognizes that email transmissions are subject to interception but are no more at risk than traditional modes of communication such as land-line telephones and the U.S. mail. Some state committee opinions suggest that for extremely confidential or sensitive material the attorney should have written acknowledgment from the client about the risk of the potential for the disclosure of the communication through email. Some even suggest that lawyers should seek client consent or consider the use of encryption before using email to communicate with a client on very sensitive issues.

In general, it has become accepted that communication with clients through Internet email does not violate the client confidentiality requirements that apply to all attorney-client communications. However, attorneys are cautioned that in some instances, when extremely confidential information is to be sent over email, the attorney should either obtain client permission to communicate via email or use encryption technology to protect the confidentiality of the communication.

Cell and cordless phones. The use of cell phones and cordless telephones to communicate with clients has not received the same level of treatment by ethics committees as the use of Internet-based email systems. There is limited authority regarding whether the use of a cell phone when communicating with a client violates the confidentiality rules.

Cell phones and cordless telephones are subject to possible deliberate and inadvertent interception. A few state ethics committees (Massachusetts and New Hampshire) have held that attorneys should not use cellular or cordless phones to discuss client information, especially if there is any nontrivial risk that such information may be overheard by a third party. Further, such conversations should take place only after there has been full disclosure of the dangers involved and the client gives consent.

Several states, including Arizona and Delaware, hold that the mere use of a cellular or cordless phone does not constitute a breach of attorney-client confidentiality or an automatic forfeiture of the attorney-client privilege. These opinions rely on the practical conclusion that the use of cordless or cellular telephones allows the lawyer to advise clients on a reasonably prompt and diligent basis. These opinions also note that cell phone and cordless telephone communications are protected by the Electronic Communications Privacy Act of 1986 and that, since it is unlawful to intercept a communication by cellular or cordless telephone, the lawyer may reasonably conclude that there is an expectation of privacy in those communications.

A number of other jurisdictions have taken a middle ground approach, advising caution and disclosure when using a cordless or cellular telephone. These jurisdictions (North Carolina, New York City, Iowa, Washington, and Illinois) conclude that lawyers should advise their clients that such telephone conversations cannot be considered confidential and obtain the client's informed consent before using cellular or cordless telephones to discuss client matters.

Conclusion

Clients today expect immediate communication with their attorneys. Two of the most efficient means to accomplish this communication are Internet email systems and cellular telephones. Attorneys can operate with a large degree of comfort that use of these communication tools will still comply with the attorney-client confidentiality requirements of the Wisconsin Supreme Court Rules of Professional Conduct for Attorneys. Attorneys are urged, however, to use these tools cautiously if dealing with highly confidential information and should consider obtaining client consent, especially when communicating by cordless or cellular telephone.

Wisconsin Lawyer