Posted by: johnocunningham | June 18, 2015

Can Lawyers Use Email for Confidential Communication?

Some legal communications are so important that they are covered in the Rules of Professional Responsibility by applicable state bar authorities, such as communications of confidential and privileged information.

Most rules of professional responsibility were sculpted prior to the digital age, and thus, digital forms of communication present interesting quandaries about how some rules apply to legal communications in the modern age.

The Texas State Bar was recently asked to give an ethics opinion on whether a lawyer can responsibly communicate confidential information by email.

The analysis they conducted to answer the query was focused primarily on the longstanding prohibition against knowingly revealing confidential information. But other state bars might also focus on newer rules (adopted only in some states) that require lawyers to be familiar with technology “to prevent inadvertent or unauthorized disclosure of confidential information” (e.g., see prior post on this blog: “New ABA Ethics Rules on Lawyers’ Use of Technology“).

By focusing solely on the well established but narrow rule prohibiting knowing disclosure of confidential information, the Texas Bar concluded that “a lawyer may generally communicate confidential information by email.” However, the state bar also noted that “some circumstances may cause a lawyer to have a duty to advise a client regarding risks incident to sending or receiving emails… and to consider whether it is prudent to use encrypted email or another form of communication.” The decision can be found in Texas Opinion no. 648 issued on April 15, 2015.

This query is a good illustration of the ways in which lawyers must reassess not only what they are communicating to clients, but the means of communication they are using.

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