The speed with which technology is changing the face of legal practice is evidenced by the fact that Colo. Bar Ass'n Opinion 90, Preservation of Client Confidences in View of Modern Communications Technology (Nov. 14, 1992) is already out of date or, at least, increasingly under-inclusive. Opinion 90 is, however, a good starting point, and also evidence that the cliché "the more things change, the more they stay the same," has vitality when it comes to pouring new technological wine into old ethics bottles. The conclusion of Opinion 90 is as accurate and prophetic today, as when written:
It is impossible to predict how technological advances will alter the means by which communications can be conveyed or intercepted. However, regardless of technological developments, the attorney must exercise reasonably care to guard against the risk that the medium of the communication may somehow compromise the confidential nature of the information being communicated.
Nothing written, before or since, so succinctly summaries the guiding principal for lawyers in the waning years of the second millennium.
R.P.C. 1.6 restates the traditional duty of an attorney to preserve client confidences. Most attorneys easily recognize that this obligation compels that sensitive client matters not be discussed in crowded dining halls or elevators, and that sensitive documents not be left lying about. More modern precautions include the ubiquitous "Notice of Confidentiality" on fax cover sheets, and precautions to make sure that sensitive client documents on theft-prone laptops be passworded.
The mass deployment of cellular telephones, the principal subject of Opinion 90, and the mushrooming use of Internet electronic mail by lawyers, have not invented the technology/confidentiality issue, they merely have refocused it. And while there are still few court decisions or ethics opinions on this subject, those which have been published highlight two truisms: (1) a basic understanding of the technology is essential to an intelligent debate regarding potential ethics issues, and (2) the distrust of things new tends to overshadow the first truism.
Cell phones have been in widespread use by clients and their lawyers since the early 1990s. Early cell phones, and most still today, broadcast an omnidirectional analog signal that could, in the industry's infancy, be received on lawful radio scanners, and may still be received today by a moderately skilled hobbyist on unlawful radio scanners. The tribulations of the current Speaker of the House, captured by ordinary citizens, have made that abundantly clear.
Although interception of analog cell phone conversations(1) was made unlawful the Electronic Communications Privacy Act of 1986, attorneys should approach the discussion of client confidences over the airwaves with a focus on reality, rather than the law. While the advent of digital cell phone systems promises considerably greater security, even digital signals are not impervious to interception. Accordingly, those ethics opinions which have considered the issue, such as Opinion 90, advise attorneys to approach cell phone communications cautiously, to refrain from discussing sensitive client matters on such devices, and to alert other parties to the conversation if they may be unaware that the attorney is using a cell phone. See, e.g., CBA Opinion 90, supra; Arizona Ethics Opinion 95-11 (1995); Illinois Ethics Opinion 90-7 (1990); Iowa Ethics Opinion 90-44 (1991); Massachusetts Advisory Opinion 94-5 (1994); North Carolina Ethics Opinion 215 (1995); New York City Ethics Opinion 1994-1 (1994). See generally ABA/BNA Lawyers' Manual on Professional Conduct, 55:401.
The proof of the sociological second truism is demonstrated in the special attention given to cellular telephone communications by legal ethicists. Tapping a standard telephone line is no more illegal, and considerably easier, than intercepting a digital cell phone conversation. However, no one would seriously suggest that attorneys and their clients must use scrambling technology for "land line" communications or risk waiving the attorney-client privilege. Regardless, even the technology literate attorney recognizes that highly sensitive client conversations should take place in a private face-to-face setting.
The increased use of electronic mail has also captured the imagination of the Cyber ethicists. While there are differences in the technology, the general rule of caution stated at the outset of this article remains the same. Valid distinctions exist between "secure" e-mail services, e.g., MCI Mail and AT&T mail, and e-mail sent along the Internet. The former is generally regarded as more secure, and analogous to the U.S. mail, the latter is treated with considerably greater suspicion, which is probably unwarranted. Again, a brief overview of the technology is useful to understanding the ethical issues.
The Internet is a global computer network, the technology for which was first developed by the Department of Defense, and first put to broad use by academicians. The goal of the Defense Department was to secure communications from enemy targeting or equipment failure. A system was designed to keep electronic communications flowing, regardless of what fate might befall any individual link. The result was a triumph of modern technology, and the foundation of the modern Internet. Thus, communications are not routed serially in a direct line from point-to-point, but rather in data packets, generally in the fastest manner available. Each packet may take a different route. Thus, an e-mail message is, more often than not, chopped to bits (or bytes) and routed along multiple courses. Thus, it has been observed that even unencrypted Internet e-mail as more analogous to a whispered conversation in Grand Central Station at rush hour, than a loud conversation in the crowded reading room of the New York Public Library.
Encryption is neither fool-proof, nor, many believe, necessary for the preservation of client confidences. See Communicating with or About Clients on the Internet: Legal, Ethical, and Liability Concerns, ALAS Loss Prevention J. 17 (Jan. 1996) (taking the position that, except in the case of communications where any threat of interception must be avoided, e-mail communication should be considered secure for ethical, liability and privilege purposes, but further advising attorneys to exercise heightened caution because courts and ethics committees may misunderstand or overstate the risks.)(2)
Those ethics opinions which have considered the subject suggest that the same general precautions and guidelines regarding client communications over cellular telephones should apply to Internet e-mail. See, e.g., Iowa Ethics Opinion 96-1 (1996); North Carolina Ethics Opinion 215 (1995).
The author agrees that consideration of the sensitivity of the communication, and caution to clients who may not appreciate the potential vulnerability of interception, are good advice in all transmissions over evolving technology. The author believes that the failure to encrypt should not be considered unethical, a waiver of privilege, or subject an attorney to professional liability in the event of interception, absent a clear and convincing showing that the communication is so sensitive that any risk of possible interception is too great. A different rule would impose an unacceptable burden on modern commerce. For now, however, the issue is open in Colorado.
1. Interception of cordless telephone conversations was made unlawful by the 1994 amendments to the Communications Assistance for Law Enforcement Act. However, the Federal Communications Commission still requires manufactures to warn that, "Privacy of communications may not be ensured when using this phone." 47 C.F.R. 15.214 (1995).
2. This admonition has proven warranted by at least some early ethics opinions. See, e.g., South Carolina Ethics Opinion 94-27 (1995) (suggesting that e-mail communication with a client may violate South Carolina Rule 1.6, absent an express waiver by the client).