Law Office Technology |
ATTORNEY-CLIENT
ELECTRONIC COMMUNICATION: |
By Jeanette Hamilton |
| Lawyers, like everyone else,
are increasingly communicating with their clients electronically. This is not surprising.
The advantages of this mode of communication - speed, low cost, convenience - are obvious.
Attorneys, like other professionals and business people, are understandably enthusiastic
about being able to communicate with clients as efficiently as possible. But for lawyers, there is a potential downside to this modern method of staying in touch. Both e-mail messages and documents sent to clients electronically can expose lawyers and law firms to increased security risks and even legal liability as compared with other more traditional forms of communication. While e-mail on internal computer systems is generally subject to strict controls, Internet messages, on the other hand, can be monitored and intercepted quite easily. An Internet message will typically pass through several intermediate systems on its way from sender to recipient. This is of great concern to lawyers because of their ethical duty to protect the confidentiality of client information. That's where encryption comes into the picture. Encryption technology, which electronically scrambles the information being sent over the Internet, is the most popular method for preventing interception. One of the most highly recommended encryption programs is PGP, which stands for "pretty good privacy." It is available from ViaCrypt in Phoenix, Arizona, e-mail address viacrypt@acm.org. Another reason lawyers are concerned is the very real possibility of their clients having e-mails from their internal system being subject to discovery. Many computer users (including lawyers) will, unfortunately, say things in e-mail messages that they wouldn't dream of putting in a formal letter or memorandum. As most everyone knows by now, these messages are just as discoverable and admissible in court as hard copies of letters or memoranda. Attorneys can assist their clients and protect themselves and their firms by implementation of records-destruction policies to insure deletion of all potentially embarrassing or problematic messages. Perhaps the riskiest of all for attorneys is sending confidential client information and documents over the Internet. The PGP technology and other similar systems are available to protect documents conveyed in this manner. These systems are called "public key" encryption technologies. Every PGP user has two "keys," which are simply strings of characters, that are used to encrypt and decrypt documents. Whether e-mail or other electronic communications should be subject to mandatory encryption for lawyers has been a hotly debated issue. Many attorneys believe that the near-absolute protection afforded to both attorney and client by routinely encrypting their communications outweighs any possible expense or inconvenience. However, many other knowledgeable and concerned attorneys argue that across-the-board encryption is unnecessary overkill. Peter R. Krakaur, presidentof Internet Legal Services and author of several books and articles on Internet technology and the practice of law, favors a "reasonableness" standard based upon adherence to the language and the spirit of the Model Rules of Professional Conduct. Krakaur argues that there is no reason to single out electronic communications for a mandatory encryption rule given that "all forms of communication can be intercepted or misdirected....E-mail should be subject to the same level of scrutiny - and the same treatment - as other forms of attorney-client communication." The American Bar Association addressed this issue in its Formal Opinion No. 99-413 on March 10, 1999 ("Protecting the Confidentiality of Unencrypted E-Mail"). The opinion is lengthy but can be summarized as ruling that a lawyer sending confidential client information by unencrypted e-mail does not violate Model Rule 1.6(a) in choosing that mode of communication "because the mode of transmission affords reasonable expectation of privacy from a technological and legal standpoint."Formal Opinion No. 99-413. It seems that this would be the last word on encryption of attorney client communications. But this is not the case. A front page article in the October 20, 2000, Wall Street Journal once again brought this issue to prominence in the collective mind of the legal community. The article dealt with concerns about "metadata," which is defined as "data on data." Metadata is used to enhance documents in a variety of ways, including storing file information on who created or edited the document and when and where it was saved. The major concern regarding metadata is having prying eyes reading information inadvertently left behind in Word documents. Many lawyers use Word to prepare their court filings, contracts and other critical documents. A good example of the metadata problem is comments inserted when sending a document to a client. As we all know, these comments could reveal secret negotiating tactics or other embarrassing information to the wrong party. Without going into just how easy it is to uncover metadata, suffice it to say that all lawyers who routinely use Word should educate themselves on possible areas of exposure and implement policies regarding documents distributed outside the firm. A consultation with your computer expert should be high on your to do list and will help alleviate concerns about preventing metadata from being read and used by anyone other than the intended recipient of the document or message to which the metadata is attached. |
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