The Impact of New Technology on the Duty of Confidentiality
LACBA Update, June/July 2001

By Jon L. Rewinski, member, LACBA Professional Responsibility & Ethics Committee. Rewinski is a shareholder and member of the Corporate Governance, Mergers and Acquisitions, and Corporate Securities national practice group of Heller Ehrman White & McAuliffe LLP. The opinions expressed are his own and do not necessarily reflect the views of the Committee or of Heller Ehrman White & McAuliffe LLP.

An explosion of hi-tech products during the last decade has changed the practice of law. Lawyers now communicate via cell phones, personal digital assistants (Palm Pilot or Blackberrys), e-mail, Web sites, Extranets and Intranets, among others.

As the world embraces these new devices, what about your ethical duty "to maintain inviolate the confidence, and at every peril to [your]self to preserve the secrets, of [your] client"? See Cal. Bus. & Prof. Code § 6068(e). Even though the lawyer-client privilege may protect these communications (see Evid. Code § 952), the ethical implication of using this new technology is largely uncharted territory in California. But the time is coming.

When using one of these devices, you first need to know whether your conversation is private. For example, many lawyers routinely talk with clients via cell phone. A cell phone is really not a phone at all but a two-way radio. When you talk, your phone broadcasts a low frequency radio signal to a receiver within a geographic "cell." The receiver transmits the signal to a mobile telephone switching office, which locates your service provider. The service provider sends the signal through land-based lines to your intended destination.

Thus, a radio, baby monitor or another cordless phone could conceivably pick up your transmission. As technology improves, the risk decreases. Nevertheless, some ethics committees have warned that there is no expectation of privacy in a cell phone conversation. See, e.g., ABA Formal Opinion 99-413; Illinois Formal Opinion 94-11 ("...use of such a mode of communication may result in a loss of the attorney-client privilege with respect to such communications..."); Massachusetts Opinion 94-5 ("...lawyers should not discuss confidential information on a cellular telephone if there is any nontrivial risk that such information could be overheard by a third party..."). Others have warned lawyers that cell phone use may have harmful consequences for clients but have stopped short of declaring the use of a cell phone as an ethical breach. See, e.g., Arizona Ethics Opinion 95-11.

E-mails are transmitted in several ways. One way is through third-party online service providers, which set up virtual mailboxes with password protection. Another is over the Internet through Internet service providers whose "routers" direct your message to its destination.

Theoretically, a hacker could intercept your message. But because the technology is generally secure, ethics committees of the ABA and most ethics committees considering the issue have concluded that lawyers can ethically communicate with clients via e-mail, even without encryption. See ABA Formal Opinion 99-413; Illinois Formal Opinion 96-10 (1997). A few, though, have suggested that lawyers should use encryption. See Iowa Bar Ass’n Op. 97-1 (1997); A. Barsocchini (Chair of the Law Practice Management & Technology Section of the California Bar), "Protecting the Confidentiality of Internet Email" (May 11, 2000). The State Bar of California has not taken an official position on e-mail.

In a short time, California ethics committees will likely address these issues. In the meantime, here are a few suggestions:

1. Learn how these devices work. Determine how likely it is that your communication will be overheard by a third party.

2. Before using such a device, consider what you will talk about and whether a more secure environment would be better.

3. Discuss these issues with your client and ask for your client’s consent to the use of particular methods of communication.

Lastly, watch for opinions by the ethics committees of the State Bar (COPRAC) and the Los Angeles County Bar Association, available on line at www.calbar.ca.gov and http://www.lacba.org/resources/tools-documents/ethics-opinions. They may impact your practice.