We communicate frequently with clients via email. The majority of our clients use a work email address. The American Bar Association issued Formal Opinion 11-459 last month, “Duty to Protect Confidentiality of E-mail Communications with One’s Client”. A criminal defense lawyer communicating with his or her client via email is a risky practice. Not only for the client but for the lawyer, as well. Here’s why.
There is no doubt that email is an efficient method of communicating with clients. However, confidential email discussions between attorney and client may be jeopardize in certain circumstances. For example, using an employer’s computer or other electronic device to communicate with your lawyer is not privileged or confidential. Internal HR policies likely permit employers to obtain client-employee communications. This is true even if the client uses a personal e-mail account on an employer’s computer or device. There is no reasonable expectation of privacy on employer owned equipment.
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Attorneys must be cognizant of Rule 1.6(a) that requires a lawyer to refrain from revealing information relating to representation of a client unless the client gives informed consent. A lawyer must also act “competently” to safeguard this information. Lawyers must take reasonable care to protect the confidentiality of client information.
The best practice for a lawyer is to advise a client to avoid using a workplace device to communicate sensitive or substantive information. A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means must warn the client about the risk of sending or receiving e-mail to which a third party may gain access.