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The Worlds of Ethics and Technology Collide
The ethics rules for electronic communication.
 Kathryn A. Thompson
September/October 2005 Issue

The collision of ethics rules and ever-evolving technology tools has created new dilemmas all paralegals must be aware of and be ready to face. Knowing where to draw the line when lobbing confidential client information back and forth across the Internet or trolling through chat rooms and online discussion lists can be a daunting task because these same tools also provide slick new — and frequently uncharted — ways to violate ethics rules. And for better or for worse, it’s the lawyer’s rules of professional conduct that apply, since those rules are mandatory in every state and universally hold lawyers accountable for the conduct of their employees.

The best course of action for navigating any ethics dilemma is follow the rules. That means knowing your own state’s ethics rules, the official comments and any available annotations. Since few ethics rules directly address technology issues, reviewing state and American Bar Association ethics opinions also is essential. Although the ABA Model Rules of Professional Conduct are addressed here, it’s critical to know precisely how your state’s rules and opinions differ from ABA authority, which is highly persuasive in the eyes of state courts and ethics regulators.

Confidentiality and the Attorney-Client Privilege
As the cornerstone of the lawyer-client relationship and our entire system of American jurisprudence as well, preserving client confidentiality allows clients to freely confide in their lawyers without fear of reprisal. Not surprisingly, the use of online and electronic communication technologies makes adhering to the confidentiality rules, mostly encapsulated in Model Rule 1.6, considerably more challenging than in the past. Rule 1.6 requires that an attorney protect the confidences of a client and make sure those under his or her supervision do so as well.

Paralegals should be aware that in addition to the ethical duty of confidentiality, lawyers also have a corresponding duty under the rules of evidence to protect communications covered by the attorney-client privilege, which applies only to information given in confidence by the client for the purpose of securing legal advice. In contrast, the ethical duty of confidentiality is broader and covers all information relating to the client’s representation.

In judicial and related proceedings, a lawyer is required to refuse to answer questions or produce documents that are protected by the attorney-client privilege, unless otherwise directed by the client. However, a client might inadvertently lose the privilege if protected information is mistakenly disclosed and reasonable precautions were not taken to guard against the disclosure. Thus, lawyers and their assistants must treat confidential documents with reasonable care so as not to forfeit the privilege or violate the ethical duty of confidentiality, such as by sending a fax or e-mail to the wrong party.

Although e-mail might not seem like one of those “killer apps” that demands special scrutiny, it should be used judiciously. Almost all states have adopted the ABA’s view that sending confidential client information via unencrypted e-mail is not a per se violation of an attorney’s ethical duty to protect client confidences under Model Rule 1.6. (see ABA Formal Op. 99-413 (1999)). However, the ABA guidelines include the important caveat that in highly sensitive matters, lawyers must use enhanced security measures and should consult with the client to determine the best mode of communication.

The ABA committee’s standard for determining what type of media can be used to transmit confidential client information was ultimately incorporated into Model Rule 1.6 when it was revised in 2002. Under the new guidelines, a lawyer must take “reasonable precautions” to prevent information from falling into the hands of unintended recipients. Special security measures are not required as long as the method of communication affords a “reasonable expectation of privacy.” The requirements apply to all modes of communication, not just e-mail, and seem to imply a duty on the part of a lawyer and his or her employees to keep informed of evolving technology to assess any changes in the likelihood of interception or in the availability of new technologies.

To determine the reasonableness of the lawyer’s expectation of privacy, Rule 1.6 requires that lawyers consider the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. However, clients can require the lawyer to implement special security measures or “give consent to the use of means of communication that would otherwise be prohibited by this Rule.”

Consequently, determining when and how to use e-mail for confidential or privileged communications might not be the no-brainer that it seems. Many states, including those that have adopted the ABA’s opinion on the issue, have called for more restrictive measures before sending electronic messages containing confidential client information. Some states require that lawyers discuss encryption options beforehand, include a disclaimer cautioning that the information is confidential or obtain express client consent prior to use. For example, Massachusetts prohibits sending e-mails to a client’s work address without the express consent of the client, since employers have the legal right to review employee messages.

There are similar uncertainties about the requisite safeguards for transmitting e-mail attachments and other electronic documents. Iowa has expressly concluded that the use of password protection in documents attached to e-mail messages sent over the Internet is sufficient for transmitting sensitive material.

Paralegals should take measures to protect the integrity of documents sent over the Internet by using software programs that allow files to be locked down using passwords or other security features. That includes using software to remove metadata — invisible but retrievable information about the file automatically stored in a file when it’s saved. Metadata might include information about the authors of a document, dates and times of revisions, as well as the actual edits or comments made at various stages of editing, which could potentially put confidential, privileged or damaging case or client information in the wrong hands.

New York has found it to be unethical to examine hidden information in electronic documents received from an adversary. A New York opinion specifically prohibits a lawyer from using computer technology to examine metadata and trace the origins of e-mail and other electronic documents the lawyer receives from other parties or their counsel since it improperly affords access to confidential client communications.

Cell Phones and Wireless Devices
Unlike e-mail messages and ordinary telephone signals, which are usually transmitted via land-based or dedicated phone or cable lines, cordless and cellular phones rely on radio waves to broadcast signals. Because the risk of interception is arguably greater than with e-mail, authority is divided over whether the use of such devices affords a “reasonable expectation of privacy” for purposes of transmitting confidential client communications — even though interception of any type of telephone transmission is unlawful.

Most states addressing the use of mobile telephones fail to differentiate between cellular and cordless phones, while some treat them synonymously with e-mail. A significant number require that a lawyer using such devices obtain client consent beforehand, or advise clients or other parties to a conversation about the risks associated with inadvertent interception. Although there is sparse authority on the topic, in all likelihood, the use of personal digital assistants or other devices that connect to the Internet wirelessly through satellite signals would require extra precautions as well.

Since the best strategy is to discuss the risks associated with e-mail and other electronic modes of communication with a client at the onset of representing that client, a paralegal should first determine whether a client has memorialized his or her wishes in a retainer or other agreement. In any event, a paralegal should secure client consent for highly sensitive communications or those that involve a heightened risk of interception, including cell and cordless phones and all other types of mobile or computerized devices that access the Internet wirelessly.

Sending Documents Inadvertently
In addition to the dangers posed by the interception of e-mail and certain types of mobile devices, technology has made it easier for legal professionals to make other kinds of inadvertent disclosures of client confidences. As previously noted, the misdirection of faxes or e-mails is a common cause of disclosure of confidential or privileged information, and the inadvertent disclosure of privileged information can waive the privilege.

Paralegals should take precautions to prevent the inadvertent transmission of confidential information to third parties, especially opposing counsel, by making sure the contact information for high-risk recipients isn’t stored in an easily accessible manner. Disclaimers might be used to minimize the risk, though it’s the conduct of the parties that is critical. Due to the lack of uniformity among the states regarding procedures to follow when receiving inadvertently sent documents, paralegals immediately should notify a supervising attorney under such circumstances.

Access to Electronic Files by Outside Service Providers
Access to electronically stored client files by third parties is another issue that has caught the eye of ethics regulators. It’s not uncommon for law firms to use the services of outside contractors or online service providers to assist with office management.

In 1995, the ABA’s ethics committee announced that a law firm could allow a computer maintenance company to remotely access its computerized client files providing “the company has in place or plans to establish reasonable procedures to protect the confidentiality of the client information” (see ABA Formal Op. 95-398 (1995)). The committee recommended the law firm secure a written statement of the service provider’s assurance of confidentiality and mandated that the law firm notify the client if a significant breach were to occur.

State opinions are generally in concert with the ABA opinion, although some impose stricter standards for ensuring confidentiality, such as segregating highly sensitive records. A few opinions specifically approve of the use of online data backup services, in which client data is transferred electronically to the service provider’s servers, transferred to a disk and then stored offsite, as long as the lawyer makes sure data transmission is secure and sensitive records are adequately safeguarded.

Paralegals should not unilaterally permit access to client records by outside contractors. A supervising lawyer should first investigate the financial viability of the company, confirm that the contractor has instituted adequate safeguards to preserve confidential information, communicate the confidentiality rules to the contractor, and insist the contractor provide a written assurance of his or her confidentiality obligations. Many of the offerings of online service providers, such as virtual deal rooms and online collaboration tools, have yet to be evaluated by ethics regulators.

Communications on Law Firm Web Sites
In addition to confidentiality concerns, another area of ethics profoundly impacted by advances in communications technology is advertising and solicitation. While the Internet has afforded attorneys unprecedented opportunities to advertise for new clients, it has exposed them to formidable ethical risks as well.

For purposes of the ethics rules, virtually all states treat communications about a lawyer’s services on law firm Web sites like any other form of lawyer advertising, and therefore subject to Model Rules 7.1 through 7.5 (i.e., “advertising” rules). However, few states follow the ABA’s advertising rules verbatim, and many have issued opinions that directly address lawyer Web sites, chat rooms and other forms of online communication, creating a mishmash of authority that varies from state to state. To further complicate matters, the ABA has revised its advertising rules numerous times to comport with a stream of U.S. Supreme Court decisions restricting certain types of prohibitions on commercial free speech.

All states adhere to the general proscription of Rule 7.1 prohibiting “false and misleading” communications about a lawyer or a lawyer’s services. Rule 7.1 applies to communications appearing in any context, whether in print or electronic media. Most violations of Rule 7.1 occur due to omissions as opposed to outright falsehoods, since the rule also prohibits lawyers from making statements that are true but misleading. For example, incomplete information about a lawyer’s fees has been found to be misleading where a lawyer advertised “no recovery, no fee” without disclosing a client’s responsibility for costs.

Lawyers also must use care in describing their expertise. Describing a lawyer’s qualifications in subjective terms, such as calling oneself an “expert,” is widely prohibited because it’s not subject to verification and therefore misleading. Similarly, comparisons with other lawyers often are prohibited if they can’t be substantiated. For example, an Ohio court found the claim “We Do It Well” to be unverifiable and misleading while an Indiana court objected to a law firm’s claim that it had “quickly become recognized as a premier personal injury law firm.” Special care also must be used in describing lawyer practice areas or areas of specialization since Rule 7.4 and its state counterparts prescribe very specific requirements for listing areas of concentration or specialty.

The view of the ABA and most state ethics regulators is that a nonlawyer, including a paralegal, can be listed on law firm letterhead or other firm communications as long as the information is not false or misleading under Rule 7.1 and his or her status as a nonlawyer is clear. Presumably, the same rules apply to Web site communications as apply to written letterhead and other types of communications about a lawyer’s services.

Some states also expressly allow the listing of a nonlawyer or paralegal’s title or special qualifications — providing the listing is not otherwise false or misleading. However, a determination of whether a particular title is false and misleading might vary from state to state (see “Ethics Roundtable” July/August 2005 LAT). For example, in Iowa, a legal assistant who meets the certification requirements of the National Association of Legal Assistants can use the title “Certified Legal Assistant” next to his or her name on firm correspondence, but can’t use the designation “CLA.” The abbreviation is considered potentially misleading. On the other hand, a lawyer in Mississippi can permit a paralegal with a similar certification to use the initials “CLA” or “CLAS” as long as the designation is accompanied by an indication that the paralegal is not
a lawyer.

In addition to the general advertising rules, many state ethics opinions require that lawyers adhere to certain housekeeping requirements when maintaining law firm Web sites. A significant number of states have special labeling, archiving, recordkeeping and filing requirements, in addition to requiring the use of various disclosures and disclaimers.

No state expressly prohibits lawyers from actually practicing over the Internet as long as they abide by the rules of professional conduct. However, a handful of opinions caution that if a client’s matter is too complex to be handled over the Internet, a lawyer’s duty to provide competent representation demands that he or she meet in person with the client. If the client refuses, the attorney must decline the representation or withdraw, if the representation has already begun.

Chat Rooms
Model Rule 7.3, which addresses direct contacts with prospective clients, was amended in 2002 to expressly identify “real-time electronic contact” as a form of prohibited solicitation. The rule now prohibits the use of “in-person, live telephone or real-time electronic contact” by a lawyer to solicit paid professional employment unless the targeted person is a lawyer, personal friend, family member or past client. The rule also prohibits the solicitation of anyone who has informed the lawyer that he or she doesn’t want to be solicited, and any contact that involves coercion, duress or harassment.

Written and recorded communications are permissible forms of solicitation under Rule 7.3 because they are considered less intrusive, immediate and likely to coerce a potential client into accepting legal representation than more direct forms of contact. Thus, contacting prospective clients by e-mail is expressly permitted as a form of written solicitation under the new rule since it doesn’t constitute direct contact as long as the words “Advertising Material” appear at the beginning and end of the electronic communication. Once again, however, some states have more restrictive labeling requirements or even consider such e-mail contacts a prohibited form of solicitation.

Even jurisdictions that have not adopted the new rule frequently prohibit the use of chat rooms for the purpose of soliciting clients, reasoning that such contacts are more analogous to in-person or live telephone solicitation than to written communications.

Chat rooms, online bulletin boards and discussion lists generally are treated interchangeably because they involve some form of interactive, real-time communication between computer users. However, some states permit the use of chat rooms to acquire clients under certain circumstances. For example, Illinois doesn’t consider the mere posting of comments on a bulletin board or in a chat group to be a form of solicitation; a lawyer is subject to the solicitation rules only to the extent that he or she initiates contact with someone with the intention of soliciting employment.

Paralegals should be able to distinguish between the permitted and prohibited forms of solicitation in their jurisdiction, and keep in mind that lawyers may not use others to solicit for them.

Inadvertent Creation of Attorney-Client Relationship
The Internet provides many opportunities for casual discourse with would-be clients and ample opportunities for misconstruing the intentions of lawyers and other legal professionals. Thus, another frequent cause of concern with respect to chat rooms and other forms of electronic communication is the potential to inadvertently create a lawyer-client relationship. If a lawyer-client relationship is unintentionally formed through an exchange in a chat room or bulletin board, or in a response to an unsolicited e-mail, the lawyer owes that client the whole gamut of duties ordinarily owed to clients, regardless of the lawyer’s intentions and whether or not the lawyer knows the identity of the recipient or receives a fee. Paralegals should keep in mind that it’s the reasonable expectations of the client, not the lawyer, who ultimately determines whether a lawyer-client relationship is formed.

To guard against the inadvertent formation of a lawyer-client relationship while communicating electronically, lawyers and paralegals should refrain from eliciting confidential information from participants and avoid providing legal recommendations tailored to a particular person’s circumstances, which might be construed as legal advice. New Mexico requires that a lawyer who posts an article to a discussion list include a disclaimer explaining that the article is not legal advice. Some states require disclosures on lawyer Web sites stating that a lawyer’s responses to questions e-mailed from the Web site are not meant to create a lawyer-client relationship. South Dakota requires that lawyers respond to unsolicited inquiries from Web site visitors with a nonengagement letter if the firm does not wish to represent the inquirer.

Paralegals who seek or appear to seek clients on behalf of a lawyer risk violating unauthorized practice of law statutes, which universally prohibit nonlawyers from undertaking legal representation. In such circumstances, the lawyer could be held ethically accountable under Model Rule 5.5 for assisting the paralegal in UPL. A paralegal’s actions also might contribute to a finding that a lawyer-client relationship does in fact exist, whether or not it was intended.

Independent paralegals doing business over the Internet should be clear about what types of activities are considered to be UPL in their states. The National Federation of Paralegal Associations has issued an opinion concerning UPL as it relates to paralegals in cyberspace, and most states have UPL committees that should be consulted before work is undertaken.

Ready to Roll
Knowing the confidentiality, advertising and solicitation rules, seeking out ABA and state ethics opinions and keeping abreast of technology trends and techniques will help paralegals avoid the ethical risks associated with communicating electronically. Regardless of the method of transmission, electronic devices must afford a reasonable expectation of privacy and be used in a way that adequately safeguards confidential client communications.

Paralegals should refrain from communicating about highly sensitive topics, or using potentially unsafe devices or methods, including cell phones or wireless networks, without express attorney authorization. To avoid running afoul of the advertising and solicitation rules, firm personnel must make sure communications describing lawyers or their services are not false or misleading. When using real-time methods of communications, care must be taken to avoid improperly soliciting prospective clients or giving a false impression that a lawyer-client relationship might be formed as a result of communications.

With these rules in mind, and armed with a few hands-on technology tools, paralegals will be well equipped to handle the various ethical issues that arise when the worlds of technology and ethics collide.

The views expressed herein are of the author and don’t necessarily represent the opinion of the ABA.

Ethics Resources Online

A state-by-state list of links to the various state ethics rules and opinions can be found on the ABA’s Web site at www.abanet.org/cpr/links.html. While most recent state ethics opinions are available online at state bar Web sites, in some cases opinions are unavailable electronically or accessible only to members. As an alternative, both Westlaw (www.westlaw.com) and LexisNexis (www.lexis.com) maintain databases of at least some state ethics opinions, and as a last resort, state bar ethics committees generally respond to inquiries for hard copies of opinions.
The ABA Model Rules of Professional Conduct are available online at www.abanet.org/cpr/mrpc/mrpc_toc.html. The headnotes to ABA opinions issued subsequent to 1996 are listed at www.abanet.org/cpr/ethicopinions.html. Copies of those and earlier opinions are available for a nominal fee at the ABA’s online Web store, along with bound volumes of past opinions and subscriptions to future opinions. ABA opinions also are searchable on Westlaw and LexisNexis.

Kathryn A. Thompson is research counsel with the American Bar Association’s Center for Professional Responsibility and was previously employed by the ABA’s Legal Technology Resource Center.

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