The Corporate Legal Times estimated in 1993 that by the year 2000, approximately 40 million e-mail users will send over 60 billion e-mail messages each year. While communication is now easier, quicker and more economical via the "Information Highway," computers, cellular telephones, fax machines, and voice mail systems create new concerns for all attorneys and their clients. This report focuses on the ethical and practical challenges facing lawyers and their clients who use various types of electronic communication.
Keeping Client Confidences in Cyberspace
Under both federal and Texas law, a lawyer has the duty to protect a client's confidences. Disciplinary Rule 1.05 states, with certain exceptions, that lawyers shall not knowingly reveal confidential client information (privileged or unprivileged) to anyone other than the client, without consent or express authorization, unless required in connection with a criminal or fraudulent act. Since the Disciplinary Rules do not define unknowing disclosure of confidential information as an ethical violation, lawyers ought not be subject to disciplinary action for inadvertent disclosure or interception. However, legal malpractice complaints or evidentiary problems may not be eliminated.
As yet, no Texas ethics opinion specifically addresses ethical violations arising from the use of cellular telephones for sensitive client communications. However, Formal Opinion 92-368 of the American Bar Association determined that inadvertent disclosure of client information should still be protected as confidential and privileged, specifically recognizing the exposure created by technological advances such as facsimile machines and electronic mail. The Opinion declined to adopt the minority view that unforced disclosure of privileged communication would destroy confidentiality and terminate the privilege. The Opinion states, "The sending lawyer . . . cannot begin to be presumed to have consented to any use of the missent materials by the receiving lawyer. . . . Any attempt by the receiving lawyer to use the missent letter for his own purposes would thus constitute an 'unauthorized use.'"
Interception of Communications
Portable and cellular telephone communications can be intercepted with appropriate radio scanning technology. Imagine the frequency with which lawyers (and clients) use their cellular telephones to call their offices and check voice mail messages. Ethical opinions from other states vary regarding the use of cellular telephones for confidential conversations, and some have discouraged their use. Subsequent changes in the wiretap and interception laws during and after 1994 create questions about earlier decisions.
Under federal and Texas law, the intentional interception or disclosure of cellular and cordless phone conversations and e-mail is a criminal act. It is a federal crime to intercept e-mail, while in transit, while stored, or after receipt. Also, Texas Penal Code Sec. 16.02 makes it illegal to intercept e-mail and cellular telephone conversations. Given the criminal implications of intentional interception and disclosure of cellular and cordless telephone communications, the protection issues discussed in most case law arise from alleged violations of federal and state wiretapping statutes and the Fourth Amendment reasonable expectation of privacy and prohibition against unreasonable searches.
While Internet e-mail is not broadcast over the airwaves like portable and cellular telephone conversations, it is nonetheless susceptible to interception. A lawyer's ethical duty to protect a client's confidences includes e-mail documentation, although the lawyer cannot guarantee privacy. Because e-mail messages are often more casual, candid, and less discreet than written memoranda, inadvertent (or intentional) interception could be especially troublesome if disclosed, even if found to be confidential and privileged.
Because the Internet consists of interconnected networks of computers, e-mail may pass through dozens of computers (and could be stored) on the way to its destination. While each of these computers is a potential point of interception, the phenomenal number of messages to be searched and the uncertainty as to which computers will temporarily store a particular communication make interception extremely difficult.
Although it is illegal under federal and state law for one to intercept Internet e-mail, what can the prudent lawyer do to protect the client's confidences? Although encryption of e-mail prevents it from being deciphered if intercepted, unencrypted Internet e-mail is most likely secure enough for the majority of non-sensitive information most attorneys might send or receive. On the other hand, certain information may be so important that any risk of interception must be precluded. Encryption software is readily available, but does add a degree of inconvenience to which clients may object. If encryption is not feasible, the lawyer and/or client may decide to communicate the most sensitive information in person or through more traditional means.
Lawyers must take appropriate precautions to insure the privacy of voice and data communication insofar as possible, establishing the ground rules for attorney-client communication early in the relationship. Remember that however careful the lawyer might be when using electronic communications, the client could be using them without the lawyer's knowledge. One might assume that the risks of electronic communication are obvious to clients. However, it would be better practice to document in the file that the client was informed in writing not to expect a guarantee of confidentiality, due to the risks of engaging in cellular or electronic communications about their legal business. Even though A.B.A. Opinion 92-368 declared that confidentiality and privilege remain intact after inadvertent disclosure, the Opinion recognized that, "'[t]aking a bet' on what reaction a court may have when an inadvertent disclosure becomes known can be a risky proposition indeed."
Attorney Advertising on the Internet
The State Bar of Texas was the first bar association in the United States to issue regulations related to attorney advertising on the Internet. When opening a web site on the Internet, Disciplinary Rule 7.04 requires Texas attorneys to obtain approval of the first-page screen which is accessible to the general public, as well as any subsequent material changes varying from the first screen of the original home page. Interpretive Comment 17 to the Rules effectively designates the web home page as an advertisement per se, subjects such publications to the provisions of Rule 7, and requires a mandatory filing with the Advertising Review Committee unless the web home page is otherwise exempt under Rule 7.07(d).
Attorneys now use the Internet to provide information regarding the particular lawyer or law firm's services to current and potential clients, other attorneys, and the general public. Generally, additional non-soliciting information published on the Internet beyond the first screen of the home page need not be submitted for pre-approval or filed with the Committee. Newsletters, fact or opinion surveys, announcements, attorney biographical information, and response forms are generally not considered to be solicitous according to Comment 17.
Solicitation via the Internet can create serious jurisdictional problems, if sufficient contractual facts exist to establish "minimum contacts" with a resident of another state. However, even if no contract for legal services results, Texas ethical requirements still apply. Internet advertising is defined as public media advertising per se, whether or not Texas lawyers extend the reach of their message beyond the borders of Texas. There are two important criteria: the broadcast or dissemination must be (1) intended for prospective clients in Texas; and (2) intended to secure employment to be performed in Texas. Internet advertising may constitute the unauthorized practice of law, as it is improper for a lawyer to engage in practice in a different jurisdiction where doing so violates the regulation of the practice of law in that jurisdiction.
Texas lawyers must be aware of the public media requirements when advertising on any medium such as the Internet through which might reach a national or even international audience. The Disciplinary Rules and Comment 17 offer Texas lawyers a manageable set of guidelines as we venture into cyberspace and consider client solicitation and promotion of ourselves and our law firms.
TLIE greatly appreciates the contribution of this article by Mr. Ken Breitbeil, a partner of McFall, Sherwood & Sheehy, P.C. (Houston). Mr. Breitbeil's practice concentrates on professional liability defense, and he may be reached at 713/951-1000.
Editorial Notes for this Issue: Interested readers may access Comment 17 on the Internet at "http://www.sbot.org/new/hpic.html". Due to space limitations of this publication, discovery issues involved cyberspace have been made available for downloading from TLIE's website at http://members.aol.com/txlie/, where litigation attorneys will find a detailed discussion by Mr. Breitbeil of discovery and evidentiary issues arising from cybercommunications. Check PC Magazine's website at http://www.hotfiles.com for a large selection of encryption programs for Windows and DOS users.
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