Legalethics.com

Pennsylvania Lawyers Should Consult With Client Regarding Receipt of Errant E-mail

Peterk — Tue, 12 Jul 2011 04:33:38 +0000

A lawyer who is mistakenly copied on an e-mail between opposing counsel and their client, must notify the sender and consult with the lawyer’s own client in deciding whether and how to use the information. Penn. Bar. Ass’n. Comm on Legal ethics and Professional Responsibility Op. 2011-10 (03/2/2011)

Autocomplete Causes Misdirection: Court Disqualifies Recipients

David Hricik — Mon, 03 Jan 2011 12:10:13 +0000

The story with a link to the court’s order disqualifying the lawyers who read the misdirected e-mail is here.

California Issues Ethics Opinion on Confidentiality and the Use of E-mail and Technology To Transmit Client Information

David Hricik — Sun, 26 Dec 2010 11:44:12 +0000

California Formal Opinion 2010-179 outlines the lawyer’s duties when transmitting or storing confidential client information when the underlying technology may be susceptible to unauthorized access by third parties. An attorney’s duties of confidentiality and competence require the attorney to take appropriate steps to ensure that his or her use of technology in conjunction with a client’s representation does not subject confidential client information to an undue risk of unauthorized disclosure. Because of the evolving nature of technology and differences in security features that are available, the attorney must ensure the steps are sufficient for each form of technology being used and must continue to monitor the efficacy of such steps.

NY St. Bar Ass’n Approves Gmail Use Despite Contextual Ad Scanning

David Hricik — Sun, 14 Sep 2008 14:54:28 +0000

The New York State Bar Association concluded that lawyers could use gmail and comply with the duty of confidentiality despite the fact that email is ’scanned’ by Google to place contextual ads. The committee warned that this sort of unthinking, automated review was proper, but not human review. N.Y. St. B. Ass’n. Comm. Prof. Eth. Op. 820 (Feb. 8, 2008).

Screenshots Created by Yahoo Mail and Left on Hard Drive?

David Hricik — Fri, 12 Sep 2008 10:13:09 +0000

Nat’l Economic Research Assocs., Inc. v. Evans, LECG Corp., 21 Mass. L. Rptr. 337 (Mass. Super. Ct. Aug. 3, 2006) is a fascinating case in various ways, and just came to my attention. Apparently, when a user views mail on yahoo, it takes a screenshot of the mail which is stored on the hard drive. While it’s not as easy to later access as a temp file, apparently they reside on the hard drive. I couldn’t find the opinion on line, but it was on westlaw.

Anyone who uses public computers or employer-owned laptops to communicate “in confidence” should examine this issue. I’m not sure it’s accurate, but the court clearly stated that Yahoo, alone, left these ghost emails!

New Hampshire Adopts Rule Protecting Prospective Clients who Unilaterally Email Law Firms

David Hricik — Wed, 20 Feb 2008 15:20:22 +0000

Effective January 1, 2008, New Hampshire adopted a rule that clearly protects persons who, in good faith, e-mail confidential information to a lawyer from having the lawyer use the information against the prospective client. The comments to New Hampshshire Rule 1.18 provide in part: “In its version of these provisions, New Hampshire’s rule eliminates the terminology of ‘discussion’ or ‘consultation’ and extends the protections of the rule to persons who, in a good faith search for representation, provide information unilaterally to a lawyer who subsequently receives and reviews the information. This change recognizes that persons frequently initiate contact with an attorney in writing, by e-mail, or in other unilateral forms, and in the process disclose confidential information that warrants protection.”

The rule no doubt makes it more important for NH lawyersto use effective disclaimers on their web pages.

Public defenders must take whatever reasonable and necessary precautions there are to ensure that information stored on computers cannot be accessed by the other offices.

Peterk — Sun, 14 Jan 2007 19:54:51 +0000

Public defenders sharing a computer server with other county offices must take appropriate measure to protect confidential information stored on those computers. Nebraska ethics advisory opinion 06-05.

Ninth Circuit analyzes the impact of disclaimers on law firm websites

Peterk — Thu, 09 Jun 2005 04:00:00 +0000

The Ninth Circuit has issued a decision which analyzes the impact of disclaimers on law firm websites which purport to deny formation of an attorney client relationship to those who submit information through forms on law firm web sites. The Ninth Circuit permitted a plaintiff who had submitted information to a firm while disclaiming creation of any attorney-client relationship to claim privilege over it. In contrast, a recent Interim opinion from California suggests that lawyers can avoid creating a confidential relationship only by specifically denying any obligation of confidentiality in order to avoid disqualification by a prospective client using the firm’s website. The same conclusions were reached a few months earlier in Nevada Formal Ethics Opinion No. 32 (March 25, 2005). Taken together, the opinions suggest that denying confidentiality is necessary to avoid disqualification, but doing so will preclude the person who submits the information from claiming privilege over it. Professor Hricik suggests some model language that avoids these issues.

Nevada Suprreme Court holds attorney-client privilege not waived by transmission via e-mail

Peterk — Mon, 04 Aug 2003 04:00:00 +0000

As reported in Ethics and Lawyering Today, In City of Reno v. Reno Police Protective Ass’n, 59 P.3d 1212 (Nev. 2002), modified, 2003 Nev. LEXIS 25 (Nev. May 14, 2003), the Nevada Supreme Court held that a privileged attorney-client communication retained its privileged status despite claims by the opposing side claiming that the privilege had been waived by the fact that the message had been e-mailed. The court relied, in part, on ABA Formal Opinion 99-413 (1999), which held that sending unencrypted internet email does not violate a lawyer’s duty of confidentiality (not an opinion on privilege, as such). The court also noted that both federal and California statutes say that unlawfully intercepted electronic communications do not lose their privileged status.

Delaware addresses e-mail confidentiality issues

Peterk — Wed, 13 Feb 2002 05:00:00 +0000

In opinion 2001-02, the Delaware State Bar Association Committee on Professional Ethics addressed the transmission of confidential client information via e-mail and cellular telephones. The committee opined that the transmission of confidential information by way of e-mail or mobile (or cell) phone, absent extraordinary circumstances, does not violate rule 1.6. Extraordinary circumstances include circumstances in which the lawyer should reasonably anticipate the possibility that his or her communication could be intercepted and confidences disclosed, such as sharing an e-mail account with others.