E-mail &
Ethics
Advisory Opinions

Editor's Note:

Good news!

The Office of Disciplinary Counsel of the Board of Professional Responsibility
has issued (in November 1998, though it just came to my attention) a new
advisory ethics opinion permitting the use by lawyers of unencrypted email.
This new Advisory Opinion essentially retracts an earlier Advisory Opinion
going the other way.

Copies of both opinions are reprinted below.

Do remember that this type of opinion is merely the opinion of Disciplinary
Counsel, and not adopted by or binding upon the Board itself in disciplinary
matters.

Lucian Pera

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BOARD OF PROFESSIONAL RESPONSIBILITY
OF THE SUPREME COURT OF TENNESSEE

ADVISORY ETHICS OPINION 98-A-650
(NOT FOR PUBLICATION)

QUESTION

Under the rules of the Code of Professional Responsibility, as set forth in
Rule 8 of the Rules of Supreme Court of Tennessee, does an e-mail message sent
over commercial services or networks carry a sufficient expectation of privacy
to satisfy the lawyer's duty to preserve the confidences and secrets of a
client?

A lawyer who communicates with a client via a computer is obligated to
observe all ethical requirements including the rules relative to
confidentiality and the attorney-*client privilege. The title of Canon 4
states: "A lawyer should preserve the confidences and secrets of a client." DR
4-101(D) requires a lawyer to"exercise reasonable care to prevent employees,
associates, and others whose services are utilized by lawyers" from disclosing
these secrets. DR 4-101(B)(1) prohibits a lawyer from knowingly revealing
confidences or secrets of clients. Therefore the disciplinary rules require
attorneys to "exercise reasonable care" that their e-mail communication not
violate the confidences or secrets of their clients.

While an interception in electronic communication is prohibited under federal
law (see l8 U.S.C. § 2510(b)), the degree to which one can expect privacy in
regards to e-mail is questionable. In the American Civil Liberties Union vs.
Reno, 929 F. Supp. 824 (E.D. Pa. 1996), the federal court acknowledged that
Internet and e-mail are not secure. In a 1986 report, out of concern over the
security of e-mail, an ABA committee suggested that e*mail not be used
relative to confidential communications. See Lawyers On Line: Ethical
Prospectus In The Use Of Telecomputer Communications, ABA Standing Committee
on Lawyers' Responsibility For Client Protection (1986).

Several states have rendered ethics opinions relative to e-mail and the
concerns over confidentiality. For instance, Iowa and South Carolina have
insisted that e-mail cannot be used unless special precautions are taken to
prevent its interception or client consent obtained. See Iowa Ethics Opinion
96-1 1996; South Carolina Ethics Opinion 94-27 (1995). North Carolina has
insisted that the same precautions be observed for e-*mail as for cellular and
cordless phone communications. North Carolina Ethics Opinion 215 (1995).

The security of e-mail via the Internet is thus problemmatic. E-mail
utilization offers a greater chance of exposure of client's confidence and
secrets than face to face communications, mail communications or even
non-cellular telephone communications. A lawyer who relies upon e-mail to
transmit confidences and secrets risks disclosure of those confidences and
secrets. There are procedures that a lawyer can use to increase the security
of e-mail, i.e., encryption or use of non-internet providers which have
installed special security safeguards. (See ABA Formal Ethics Opinion 95-398
(1998)). Relying on such procedures would allow e-mail communications to
comply with ethical requirements. Another alternative is for the lawyer to
advise the client of the risks of using e-mail and to follow the client's
instructions on whether or not to use it. It has been suggested that
privilege warnings, such as those used on facsimile transmissions, be placed
on e-mail communications. While such warnings may be desirable, they are not
solutions as the risk of disclosure remains significant.

In summary, use of the e-mail to transmit client confidences
and secrets would not be permitted under DR 4-101, unless the client has
consented, the message has been encrypted, or the e-mail is via a non-Internet
service provider which has been previously determined to be secure.

Pursuant to Rule 9 (26.5), this opinion is not binding on the Court, the
Board, or the Ethics Committee.

This 22nd day of May, 1998.

Lance B. Bracy
Chief Disciplinary Counsel

CONFIDENTIAL

William M. Hunt, III
Disciplinary Counsel

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BOARD OF PROFESSIONAL RESPONSIBILITY
OF THE SUPREME COURT OF TENNESSEE

ADVISORY ETHICS OPINION 98-A-650(a)
(NOT FOR PUBLICATION)

QUESTION

Under the rules of the Code of Professional Responsibility, as set forth in
Rule 8 of the rules of the Supreme Court of Tennessee, does an e*mail message
sent over commercial services or networks carry a sufficient expectation of
privacy to satisfy the lawyer*s duty to preserve the confidences and secrets
of a client?

On May 22, 1998, an advisory opinion, Advisory Opinion No. 98-A-650 was
issued which permitted e-mail via encryption or via non-Internet providers.
However, the use of e-mail via the Internet was prohibited unless client
consent was first obtained. This *Tennessee Advisory Opinion relied in part
upon Iowa and South Carolina ethics opinions. South Carolina has now reversed
its opinion and permits e-mail. See South Carolina Bar Advisory Opinion
97-08. Other jurisdictions are also now permitting e-mail, see District of
Columbia Bar Ethics Opinion No. 281 (2/18/98). The reasoning in these new
opinions is that the technology involved in e-mail is now better understood
and the use of e-mail more widespread. The technology has also improved. It
is generally accepted that the security of e-mail is probably no more
problematic than the security of a non-cordless telephone line. Therefore,
the concerns in Advisory Ethics Opinion 98-A-650 that confidentiality may be
jeopardized appear not to be as viable as that opinion perceived. Therefore,
Opinion No. 98-A-650 is herein amended to permit the use of e-mail via the
Internet to transmit client confidences and secrets.

DR 7-101(A)(2) places upon attorneys the duty to keep clients reasonably
informed. This necessitates that attorneys advise the clients that they are
using e-mail. If the client objects to an attorney using e-mail, the lawyer
must cease using e-mail when the client's confidential communications are
therein discussed.

If the attorney is going to use e-mail, the attorney is also obligated
pursuant to DR 7-*101(A) to frequently check his/her "mail box* for e-mail to
the attorney.

Pursuant to Rule 9 (26.5), this opinion is not binding on the Court, the
Board, or the Ethics Committee.

This 19th day of November, 1998.

Lance B. Bracy
Chief Disciplinary Counsel

William M. Hunt, III
Disciplinary Counsel