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Can Using E-Mail Place Lawyers at Risk of Ethics Violations?

Generally distrustful of new technology, the legal profession has -- for at least a decade -- embraced e-mail as a secure means for communicating with clients. Indeed, even the ABA thinks nothing of letting lawyers have unencrypted e-mail communications with clients. But could the profession be in for a backlash? Ethics expert Eric Cooperstein examines that question over at The Lawyerist.

Cooperstein highlights some of the potential security issues that arise when lawyers communicate with clients who are checking e-mail via their employer's e-mail account. Essentially, employees have no expectation of privacy when using a work e-mail account and may be considered to have waived their rights of confidentiality in communicating with their lawyers. Moreover, even when clients use a work-based computer to access Web-based e-mail accounts like Yahoo or Gmail (as opposed to an employer-owned account), at least one New Jersey court has held that the company could still access the employee's e-mail, which resided on the laptop hard drive.

Cooperstein cautions that as a result of these decisions, attorneys may be curtailed in their ability to communicate with clients during the work day -- though it won't eliminate communications entirely:

Of course, a rule like this need not act as a total bar on emailing clients at work but lawyers should have a heightened awareness of the privacy (or lack thereof) that will be accorded to emails that need to be kept confidential, such as settlement discussions, case strategies, discussions of client wrongdoing, etc. In some situations, lawyers may have to forsake email in favor of -- gasp! -- the telephone!

Do you have any concerns about security when communicating with clients by e-mail? What are you doing to address those issues?

Posted by Carolyn Elefant on April 21, 2009 at 03:49 PM | Permalink | Comments (3)


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