Risks Involved in Electronic Communications
excerpted from an article by Thomas P. Sukowicz
(County Bar Update, March 2004, Vol. 24, No. 3)

 

Risks Involved in Electronic Communications

 

Excerpted from an article by Thomas P. Sukowicz, director of Lawyers' Risk Management Services at Hinshaw & Culbertson. The firm's risk management Web site is located at www.lawyeringlaw.com.

 

In this age of electronic communication, the use of Web sites, mobile phones, fax machines, and e-mail presents lawyers and law firms with ethical and liability issues that did not exist a generation ago. These issues include the restrictions on communications with prospective clients, the inadvertent creation of an attorney-client relationship by electronic means, the preservation of client confidences and secrets, and the provision of legal services electronically.

 

Communications with Prospective Clients: Unintentional Creation of Attorney-Client Relationship

 

While the use of Web sites has become a standard business practice, law firm Web sites unintentionally can provide an avenue for the creation of an attorney-client relationship.

 

The Web site exists to help bring in more clients. If a Web site contains an invitation to contact the firm, possibly with one or more e-mail links, the risk is that when a person contacts the firm for legal advice through its Web site, the prospective client also will provide confidential information regarding the legal matter about which the advice is sought. Under some circumstances, that communication may create an attorney-client relationship, at least for certain purposes. An invitation for inquiries may create a reasonable expectation that the firm is willing to respond to all such inquiries with legal advice.

 

Even if a formal attorney-client relationship is not formed, any confidential information the firm has received about a person's legal matter must be preserved. The fact that the information was received by electronic means does not make it less confidential, and it must be treated as any other confidential information from a client would be treated. That means the firm, and every lawyer in the firm, will have a fiduciary duty to protect the confidences of that "client" from disclosure and not to use the information to the "client's" disadvantage. Consequently, the firm will be precluded from representing any party adverse to that prospective client in connection with the subject matter of that confidential communication.

 

To avoid being the recipient of unwanted confidential information, take the following precautions. Prominently state on the Web site that the firm does not seek to represent any person based solely on the visit to the Web site and that no attorney-client relationship will be formed merely based on a communication to the firm through its Web site. The disclaimer should state that no one should provide any confidential communication to the firm prior to its acceptance of that person as a client.

 

Another level of protection is provided by using a device that blocks any direct communication to the firm through the Web site unless and until the person reads such a disclaimer and signals agreement that no attorney-client relationship is created by communicating through the Web site and that no information sent through the Web site is considered by that person to be confidential or secret.

 

Implementing these measures should help avoid misunderstandings with persons who communicate through the Internet and may help defend against claims that the firm received confidential information or that it entered into an attorney-client relationship through its Web site.

 

Communications with Clients: Confidentiality

 

No common form of electronic communication is totally secure. Even a land line telephone is not without risk, as telephone lines can be tapped easily, and telephone companies sometimes monitor calls.  Also, if there are multiple extensions, it is easy for a third person to listen in on the call. Notwithstanding those risks, land line telephones are commonly used for lawyer-client communications. The law recognizes that persons who communicate through that means have a reasonable expectation of privacy.

 

Mobile telephones, however, carry with them a risk that is not present with land line telephones, as mobile telephones rely on radio waves that are subject to easy interception. There is no consensus among jurisdictions regarding the use of wireless telephones. Lawyers should avoid discussing confidential client matters over mobile phones, and, if they want to use wireless telephones for client communications, they should disclose to the client the risks of doing so and obtain the client's prior consent.

 

The use of fax machines also presents many opportunities for inadvertent disclosure of confidential information when sending and/or receiving. If the sender enters even one digit incorrectly, the fax may be sent to the wrong party. If fax numbers in the file are mixed up or if the sender inadvertently uses the wrong number, the document may be sent to someone such as opposing counsel rather than to the intended recipient. Extreme care should be taken to insure that the fax is sent to the correct number. Always double-check the number before hitting the transmit button.

 

On the receiving end, there may be many persons who have access to the fax machine other than your client. If that is the case, always check with your client before sending a fax to make sure either your client will be at the fax machine to receive it or consents to the transmission without arranging to be at the fax machine to receive it.

 

Like fax transmissions, e-mail communications may be misdelivered by typing the e-mail address incorrectly or by using the wrong address altogether. If the sender sends e-mail to predefined groups, hitting the wrong button can cause a communication to go to a group of persons for whom it is not intended. E-mail sent over public networks, such as CompuServe, America Online, or the Internet, can be read by system administrators and hackers. Lawyers should avoid using such public networks to communicate confidential information. If e-mail will be used, the lawyer should disclose the risks to the client and obtain the client's prior consent to its use.

 

One precaution that can be taken with e-mail is to mark it "Confidential Attorney-Client Communication." In theory, if lawyers inadvertently receive such a communication and realize that they are not the intended recipient, they will not read the communication and will notify the sender of the sending error.

 

Encryption is another way to make e-mail communications more secure. Although it is not required for confidential communications, you may want to consider using it for more sensitive communications.

 

The best practice with any form of risky communication is to inform the client at the outset of the risk involved and obtain the client's direction as to the means of communicating. Inform the client that the use of any means of communication other than in-person private meetings or two-way (as opposed to multiparty) land line telephone conversations involves risks of disclosure of confidential information to third parties. Obtain the client's consent to the use of cellular telephones, facsimile machines, e-mail, and computer-to-computer data transfer, and the circumstances under which the client agrees to such communications. Confirm the client's direction in the engagement agreement or in a separate writing. By informing the client and obtaining consent, risk in electronic communications can be managed.

 

This article is intended to inform the reader of potential liability exposures for attorneys. This article reflects general principles only and does not render legal advice. Readers should consult legal, financial, insurance, and other advisors if they have specific concerns. Neither the Los Angeles County Bar Association nor Aon and its affiliates assumes any responsibility for how the information in this article is applied in practice or for the accuracy and completeness of the information. Reproduction without written permission is prohibited. This article originally appeared in the Attorneys' Advantage The Quarter Hour newsletter. This article is made available to the County Bar Update by Aon Direct Insurance Administrators, administrators of the Aon Attorneys' Advantage Program, part of the LACBA Sponsored Aon Insurance Solutions Program. The Aon Attorneys' Advantage Program provides a wide variety of benefits and products exclusive to LACBA members. For information or to contact a representative, visit www.aonsolutions.com.

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