Nicole Black, BridgeTower Media Newswires
In the mid-1990s, bar associations began to green light email, opining that lawyers could ethically use email to communicate with clients. However, that permission was granted with the proviso that as technology improved, alternate, more secure methods of digital communication might emerge — thus rendering unencrypted email to be an outdated mode of client communication.
That’s why, last May the American Bar Association issued Formal Opinion 477 (online: https://www.americanbar.org/content/dam/aba/administrative/law_national_security/ABA%20Formal%20Opinion%20477.authcheckdam.pdf), in which the ethics committee concluded that unencrypted email was inherently unsecure and that lawyers must either use a more secure method of communication with clients, such as secure online client portals or encrypted email, or determine on a case-by-case basis whether using email would be ethically permissible.
A recent opinion issued by the Alaska Bar Association provides further evidence of the complexities encountered hen lawyers use email for client communication. At issue in Ethics Opinion 2018-1 (online: https:// alaskabar.org/wp-content/up loads/2018-1.pdf) was whether it was ethical for a lawyer to “cc” or “bcc” a client in on email correspondence with opposing counsel. Specifically, the committee was concerned with the potential risks of waiving attorney-client privilege in that scenario. The committee also considered the ethical obligations of counsel when responding to an email wherein opposing counsel’s client is copied in on the email.
The committee determined that for confidentiality reasons, it is unwise to “cc” one’s client in on all but purely administrative emails, such as notifications of future court dates: “Recognizing the obligation to protect a client’s secrets and confidences, it is not advisable for a lawyer to ‘cc’ their client in a message to opposing counsel concerning the subject of the representation or any other matter that may give rise to a response that could reveal a client confidence or secret.”
The committee also concluded that if a lawyer plans to “cc” a client in on emails, it is important to obtain the consent of opposing counsel before doing so, since lawyers are prohibited from communicating with communicating with opposing parties in the absence of consent from their attorneys. The committee explained the risk as follows: “E-mail addresses often do not obviously indicate the identity of the person behind the address. A lawyer who ‘replies all’ may therefore be unaware that the ‘cc’ includes a represented party. So too, e-mails can often include a long list of ‘cc’d’ recipients, once again making it difficult to discern if a represented party has been included in that list. Inadvertent communications with represented parties can easily occur even with reasonable care exercised by the recipient of the e-mail.”
Next the committee turned to the issues presented when an attorney chooses to “bcc” a client. The committee adopted the position taken by the New York State Bar Association in 2015 in Ethics Op. 1076 (online: http://www.nysba.org/CustomTemplates/Content.aspx?id=60757), concluding that lawyers should avoid doing so since a “client who receives an e-mail as a ‘bcc’ may ‘reply all’ and inadvertently communicate directly with opposing counsel. An unsophisticated client may not realize the effect that the communication may have on disclosing matters that otherwise would be confidential.”
Finally the committee recommended that should a lawyer who chooses to communicate with clients using email wish to share with a client information from an email sent by opposing counsel, the most prudent course of action would be to simply forward the email to the client.
Alternatively, instead of jumping through all of these hoops in order to be ethically compliant when using email, 21st century lawyers now have a more secure, foolproof way of sharing information with clients, including emails from opposing counsel: the secure online portals often built into law practice management software. Instead of running the risk of breaching client confidences by inadvertently “bcc’ing” or “cc’ing” clients, you can instead share the email with your clients via secure online portals designed for that very purpose. Doing so not only avoids the host of ethical minefields presented when emailing with your clients and opposing counsel, but also allows you to be in full compliance with ABA Op. 477, and sidestep the security issues presented by email altogether.
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Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book “Cloud Computing for Lawyers,” coauthors the ABA book “Social Media for Lawyers: the Next Frontier,” and co-authors “Criminal Law in New York,” a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycase.com.
