YOU MAY EMAIL ME, BUT
PRIOR TO SENDING YOUR INITIAL EMAIL, PLEASE READ THE BELOW INFORMATION FROM THE
MISSOURI BAR ASSOCIATION AND THE NOTES THAT FOLLOW. YOUR INITIAL EMAIL
SHOULD BE LIMITED TO AN INQUIRY FOR SERVICES. DO NOT SEND PRIVILEGED
INFORMATION UNTIL IT IS CLEAR THAT I AM GOING TO REPRESENT YOU.
TO USE OF EMAIL
FOR TRANSMISSION OF SENSITIVE ATTORNEY CLIENT INFORMATION
The Chief Disciplinary Counsel for the Missouri Bar Association has issued
an opinion as to the obligation of Missouri Bar Members to inform their clients
and prospective clients as to the security risks involved in the use of email
and that email, like fax's, telephone lines, letters and other forms of
communication are subject to being intercepted. The CDC has expressed the view
that email is a new technology and the CDC wishes to take a conservative
approach. The full text of the opinion and a motion to reconsider are set out
below. Please read this carefully before sending me any email or requesting
that I respond to you via email. While, in my opinion, the risk of interception
is small, it is apparently a technological risk.
QUESTION: Is it necessary to caution clients and prospective clients
who may communicate with Attorney by e-mail that e-mail may not be secure?
attorney who contemplates using e-mail to communicate with a client,
prospective client or a third party regarding a client's matter, should obtain
the consent of the client prior to communicating in that manner. The client's
consent should be obtained after the attorney is satisfied that the client is
aware of the risks of interception of the message as it travels through the
Internet as well as through any network to which the computer may be connected.
Additionally, this consultation should address any potential for interception
from the individual computer the client or other person will be using to send
or receive e-mail. The consultation should address the possibility that the
message could be randomly intercepted and disclosed by an otherwise
disinterested person as well as the relative risk that the message could be
intercepted by someone specifically interested in the matter which is the
subject of the communication. If Attorney's web site will solicit
communications by e-mail to inquire about or initiate an attorney client
relationship, Attorney's web site should include the information, which should
be included in the consultation with an existing client.
QUESTION: Attorney is requesting clarification of 970230 concerning
communicating with a client using e-mail. Attorney feels that the previous
opinion is an overreaction. Would OCDC reconsider its position?
regency of the development of e-mail communication is a valid basis for a
distinction between forms of communication. It is certainly acceptable to
advise clients of the relative risks of interception of communications by
regular telephones, etc. However, the attorney owes a duty to the client to
advise of the risks of attorney/client communications through a technology
about which many clients only have a rudimentary knowledge. This advice does
not have to be technical in nature. The advice must be adequate to inform the
client of the nature of the risk before the client makes the decision that it
is acceptable to use that method of communication.
What Most Attorneys Now Attach to Email as a
This electronic mail message and any attachments may contain
attorney-client privileged or otherwise confidential information.
Recipients should ensure that proper security measures are taken to
maintain any privileged or confidential information. If you are not an
intended recipient of this electronic mail message as listed above,
please notify The 'Such and Such Law Firm" immediately and delete or
destroy the electronic message and all printed copies. The unauthorized
disclosure of privileged or otherwise confidential information is
strictly prohibited. All recipients are hereby notified that (1)
electronic mail is not secure, (2) any electronic mail sent to or
received by you may be exposed to multiple computers and/or users in
transit, and (3) interception during transit by improper access may
Disclosures by the Attorney or the Client
The above "Notice" is
intended to protect from an "inadvertent" disclosure. Each State
determines issues of attorney client privilege based on the law of the
particular state where the issue is raised. The above warning may or
may not protect the privilege in Missouri depending on many factors.
As far as can be determined, the Missouri Supreme Court has not ruled on
this yet directly. State v. Dandurand, 20 S.W.3d 831
(Mo.banc 2000) discusses inadvertent disclosure in the context of handing
over privileged information to an expert for the client and is worth
reading. It is my opinion that the "Notice" will not protect you in the
event of an interception in light of the very clear warning from the Bar
Association. If you really need to send privileged information, the
solution is to use a properly secured encryption program. This I
believe would, if intercepted (intentionally or unintentionally) and then
intentionally "cracked" with some effort with a decryption program would
withstand a claim of "no waiver."