Advisory Opinion: 2217
Year Issued: 2012
RPC(s): RPC 1.4(b), 1.6(a),
Subject: Email Security


Question Presented:

“A client uses an employer-provided or employer-owned computer, other communications device, or email account to communicate with a lawyer. Does the lawyer have an obligation to advise the client that confidentiality may be jeopardized?”

Answer:

Yes.

The obligation arises once the attorney believes there is a significant risk that a third party will access the communications. At that time the attorney has an obligation to advise a client using the client’s employer-provided or employer-owned computer or other communications device or email account to communicate with the lawyer that the communications are likely to be open to review by the employer and other third party(ies), and attorney-client privilege may be waived for such communications.

Analysis:

Lawyers and clients often communicate with each other via email and other electronic means, including cellular telephones equipped for text messaging. Often times, clients communicate with a lawyer from “work,” whether inside or outside the workplace, using employer-provided computers or other electronic communications devices. Some employers monitor communications made from “work,” including those made with those mobile communications devices provided by the employer. When a client uses these forms of communication, particularly those provided by an employer or “public” devices, a “third party” may have access to, or monitor these communications with the lawyer.

Absent an applicable exception, RPC 1.6(a) requires a lawyer to refrain from revealing “information relating to the representation of a client unless the client gives informed consent.” RPC 1.6, Comment 2 states further, “A fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation.” This responsibility includes information contained in electronic communications made in the course of representation.

Clients may not be afforded a reasonable expectation of privacy when they use an employer’s computer or other device to send messages to their lawyer or receive messages from their lawyer. This puts any such communications at risk, both unintentionally and unstoppably, of being received or reviewed by the employer or other third parties. As noted in Comment [17] to RPC 1.6, “[w]hen transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients.” RPC 1.4(b) requires that a lawyer explain a matter to a client to the extent reasonably necessary to permit the client to make informed decisions about the representation. One such decision is whether to use a method of communication that may be accessed by third parties, particularly if the lawyer has reason to believe that the client is unaware that may occur.

Conclusion:

A lawyer receiving or sending substantive communications with a client via e-mail or other electronic means must warn the client about the risk of disclosure to the employer or other third party for any communications using a public, or employer provided computer or other workplace device or system once the lawyer believes there is a significant risk that a third party will access the communications. The lawyer must take reasonable care to protect the confidentiality of these communications by giving appropriately tailored advice to the client. See ABA Formal Op. 11-459.

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Rules of Professional Conduct Committee. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law than the meaning of the Rules of Professional Conduct. Advisory Opinions are based upon facts of the inquiry as presented to the committee.