Since the advent of e-mail, lawyers have hesitated to use it to communicate with clients because of concerns about confidentiality. Consequently, courts have not confronted this confidentiality issue in pretrial discovery disputes. Without judicial guidance, solutions have been neither easy nor quick because the confidentiality problem has ethical, legal and practical dimensions.

Last month, both the ABA Standing Committee on Ethics and Professional Responsibility (construing Disciplinary Rule 1.6) and the D.C. Bar Legal Ethics Committee (construing its own Disciplinary Rule 106) issued opinions on the propriety of lawyers communicating via unencrypted (uncoded) e-mail. Both Disciplinary Rules generally preclude lawyers from revealing confidential communications of their clients, except under limited designated circumstances. Yet the Committees interpreted these Rules to conclude that lawyers can communicate via e-mail that is not specially protected.

Bar members must understand, however, that these opinions only insure that a lawyer's use of e-mail will not result in violations of the profession's Disciplinary Rules. They do not resolve the separate, and equally compelling, question of whether the use of e-mail violates the confidentiality element of the attorney-client privilege--an issue that could expose lawyers to malpractice suits.

While the use of e-mail has been held in some cases not to have jeopardized the attorney-client privilege, there have been no published judicial opinions in which the confidentiality issue has been explored in the context of that technology. However, the logic of the decisions of Bar Associations and judicial trends over the past several decades strongly suggest that judges will find a reasonable expectation of confidentiality in e-mail communications (even unencrypted e-mail), and thus hold that the attorney-client privilege protects e-mail communications.

TWO-DIMENSIONAL

For the privilege to apply, the attorney and client must communicate in confidence (secretly) for the purpose of seeking or rendering legal assistance. The element of confidentiality has two dimensions. First, the client and attorney must subjectively expect that their communications with one another will be confidential. Second, their expectations must be objectively reasonable. Frequently, the first question merges with the second because the circumstances surrounding each communication simultaneously control and prove whether the expectation of confidentiality was both objectively reasonable and subjectively held.

The presence of third parties is the most common circumstance that precludes compliance with either the objective or subjective test. Consultations in the presence of a client's family member or friend, or oral exchanges on an airplane in the presence of strangers have been held to preclude the privilege from attaching to the overheard communications: In these circumstances it could not reasonably be expected that the communications would be secret.

However, the expectation of confidentiality while talking on a telephone -- even one that has extensions from which third parties could listen, has been held to be objectively reasonable so long as neither participant has reason to believe that others are actually listening. The question presented by e-mail is whether the probability of interception by third parties makes it comparable to the telephone conversation or to the communication in the presence of third parties. To ask the question suggests the answer. If communications are from the attorney's private computer via telephone lines to the client's private computer, it would be absurd to conclude that only communications going to the client's audio receiver (her telephone) could be confidential, and therefore, privileged.

The major concern about the confidentiality of e-mail is the possibility that unauthorized parties could either intercept a transmission in progress or could retrieve a message by gaining access to a computer file maintained by the sender, a recipient, or an Internet service provider. Yet these threats are analogous to the possibility that someone could electronically eavesdrop on a lawyer's telephone conversation or listen to his voice-mail messages, and courts have held that willful acts by third parties should not deprive clients of their privilege protections.

More significantly, though, whether the message is in transit or stored, the courts are no longer according the same reverence to confidentiality as an absolute prerequisite of the attorney-client privilege. When documents are stolen by burglars or disgruntled employees, or eavesdroppers overhear conversations, judges universally ignore the destroyed confidentiality because the client was not responsible for the destruction. This is a complete reversal of the earlier common law, at which fault was irrelevant, and if confidentiality disappeared, for whatever reason.

Today's courts also ignored loss of confidentiality if a trial judge erroneously orders the disclosure of a privileged communication and that order is later reversed on appeal. The privilege protection will be restored even though the communication's secrecy that the privilege was designed to protect has been destroyed due to no fault of the client.

'OOPS RULES'

Even when the client is responsible for the loss of confidentiality through its voluntary disclosure of a privileged document, we now see courts regularly excusing the destruction under what has been descriptively dubbed the "Oops Rules." When the disclosure was inadvertent and the client acted expeditiously to correct the mistake after discovering it, courts have "stuffed the rabbit back in the hat," by requiring that the document be returned, and have pretended for privilege purposes that the disclosure never happened.

Similarly, pretrial protective orders have permitted the free exchange of potentially privileged documents among parties who have the right to retrieve them at the end of the litigation without a loss of privilege protection. See generally, P.R. Rice, Attorney-Client Privilege: The Eroding Concept of Confidentiality Should be Abolished, 47 Duke L.J. 853 (1998).

Confidentiality has become little more than a condition precedent to the creation of the privilege, but not a necessary condition for its continuation. Therefore, absent special circumstances, it is very likely that e-mail, via intranet or internet, will be seen as secure enough that its users can reasonably expect privacy in this medium. The element of confidentiality should only pose a problem for e-mail users if the messages are not securely stored on senders' and recipients' computer systems after they have been sent. Adequate security will, at a minimum, include limited access by password and internal policies about which relevant personnel should be educated.

Lawyers should also be conscious of the possibility that client information may be so sensitive in some circumstances that the lawyer's failure to employ added measures to ensure confidentiality may give rise to civil liability, even if ethical standards and the privilege are not implicated. Examples might be sensitive product information and merger proposals that could significantly affect stock prices or ongoing negotiations. In these instances, e-mail might be avoided unless it is encrypted or unless the client declines the lawyer's offer of encryption.

As a matter of courtesy and to avoiding liability, lawyers who intend to use e-mail to communicate with their clients should (perhaps as a standard feature of a retainer letter) explain to them the associated risks, and give the clients the option of encryption. After all, it's their confidences, and they will be paying the fare. In this context, rather than herself gauging the sensitive nature of client confidences, the wise lawyer might allow her client to "make the call."