The ABA has issued a formal ethics opinion that provides guidance to lawyers whose clients use an employer's email account to send or receive email from counsel. In Formal Opinion 11-459, the Standing Committee on Ethics and Professional Responsibility urges lawyers to warn their clients that the confidentiality of electronic communications may be jeopardized if the employer or other third party, such as a hotel or library, has the potential to access email or other correspondence hosted on the third party's computer system. When clients use an employer's computer, smartphone or other telecommunications device, or an employer's email account, the employer may be able to obtain access to the communications and take advantage of that opportunity in various contexts, such as when the client is engaged in an employment dispute or when the employer is responding to a subpoena or document discovery in litigation. Clients may be unaware of the possibility that a third party may gain access to their personal or privileged communications without their knowledge and thereby waive the privilege. Since many employers have employment policies reserving the right of access to email sent via the employer's email account, the ABA opinion counsels lawyers to assume that the client's employer does have a such a policy in place unless the lawyer has reason to believe otherwise. Lawyers should counsel the client at the earliest opportunity about the risks of employer or other third party access to those communications. The opinion suggests that the lawyer and client limit communications to personal email accounts not accessible to the employer or other third party so as to preserve the confidentiality of the correspondence. The opinion notes that different courts have reached different conclusions about whether an employee's client-lawyer communications stored on a workplace computer or system remain privileged, and the law appears to be evolving. Where there is a significant risk that the client will use a business email address for personal communications, the protective measures recommended by the opinion include the lawyer refraining from sending email to the client's workplace, as distinct from the personal email address, and cautioning the client against using the business email account or using a personal email account on a workplace computer or device at least for substantive emails with counsel. The workplace is not the only one in which lawyer-client electronic communications may be accessed by third parties. For example, some wifi "hot spots" hosted by third parties present a risk that email will not be secure. This ABA ethics opinion dovetails with another, related, opinion issued the same day. In Formal Opinion 11-460, the committee examined a lawyer's duties following receipt of copies of a third party's email communications with counsel. The committee concluded that the current rules do not generally require a lawyer to disclose receipt of those communications either to the third party or the third party's lawyer. Viewing the issue in the context of an employer's lawyer receiving copies of an employee's private email communications with counsel, the committee concluded that there is no duty to notify opposing counsel of the receipt of the communications, unless that duty can be found in case law, civil rules or other substantive law. If no law requires giving such notification, then it is up to the employer-client whether to give notice, and the employer's lawyer must explain the implications of disclosure to enable the employer to make an informed decision. Taking issue with several court opinions to the contrary, the ABA opinion observes that "the Model Rules do not independently impose an ethical duty to notify opposing counsel of the receipt of private, potentially privileged e-mail communications between the opposing party and his or her counsel." Needless to say, the advent of electronic communication has both enhanced and facilitated communications, both commercial and personal. At the same time, it has opened up a host of new issues about which attorneys and their clients must be sensitive and informed. The ABA has provided initial guidance on two of these issues. Clearly, there will be more to come. We here at Cyberinquirer will stay on top of these matters. As should attorneys and their professional liability underwriters.
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