CAUTION AS 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.

Opinion 970230

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?

ANSWER: An 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.

Opinion 980137

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?

ANSWER: The recency 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.
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What Most Attorneys Now Attach to Email as a Warning:

"NOTICE:  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 occur."

 

Inadvertent 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."