Confidentiality and E-Communications

Originally published by Brad Johnson.

A prudent lawyer would no doubt avoid communicating sensitive client information in a crowded room where bystanders would be able to hear the conversation. However, in the rapidly changing technological landscape, the reasonable steps necessary to ensure lawyer-client communications are truly private are often less intuitive. So what steps should a lawyer take before hitting send on an email to a client? And what considerations apply to communications made by text message, or through mobile apps or social media messaging?

The Professional Ethics Committee for the State Bar of Texas and the American Bar Association’s Standing Committee on Ethics and Professional Responsibility have each issued opinions that provide useful information in analyzing such questions. In Ethics Opinion 648 (2015), the Professional Ethics Committee outlined relevant factors a lawyer should consider in determining whether confidentiality will be protected when communicating by email, and whether encrypted email or a different form of communication may be necessary. In Ethics Opinion 665 (2016), the Professional Ethics Committee addressed a lawyer’s obligations to avoid the inadvertent transmission of metadata (information embedded in an electronic document) containing confidential client information.

More recently, ABA Formal Opinion 477R (2017) provided an in-depth discussion related to the securing of internet communications. The opinion recognized a lawyer’s obligation to keep informed of technological risks and benefits, and to take reasonable efforts to protect confidential information based upon factors such as the type or sensitivity of information at issue, the method of communication, and “the types of available security measures for each method.”

While the opinions provide numerous considerations and suggestions relating to the protection of client information in electronic communications, here are just a few considerations a prudent lawyer may need to make:

1. What type of information is involved and is it of a sensitive nature? When dealing with sensitive information or information at a higher risk for theft or intrusion, more protective security measures may be necessary.
2. Is a communication (such as an email or a text message) encrypted? For sensitive client information, encryption may be warranted.
3. In evaluating whether to communicate with a client through a mobile app or social media messaging, a lawyer should determine whether a third party (including the service provider) may have access to the information. While some platforms may provide for encryption of communications, others do not or may not make that the default setting. (For instance, the most recent Facebook Messenger app for iOS and Android devices provides users the option to activate encryption for a message but does not provide encryption as a default setting. By contrast, messages sent through a desktop version of Facebook Messenger do not currently have the same option for encryption.)
4. Who else may have access to a client’s email account or electronic device? Are accounts and devices password protected? Does anyone else know the client’s password, and does the client always log out of accounts? Does the client utilize public or shared computers to check his or her email? A lawyer may need to advise a client as to the risks associated with sending information electronically and the use of accounts and devices that may be accessible by third parties.
5. What if the lawyer’s electronic device is lost or stolen? A prudent lawyer should plan ahead and, depending on the circumstances, consider methods for remote disabling or destruction of data on such devices.

The reasonable steps a lawyer should take to protect client confidentiality will require a continued evaluation of the risks and benefits involved as technology changes, and the opinions discussed may provide useful guidance for lawyers regarding their professional responsibilities.

If you are a Texas lawyer and have questions about your ethical obligations, you may contact the State Bar of Texas Ethics Helpline at (800) 532-3947 for guidance on how to access the relevant rules and information, including ethics opinions and caselaw, that may help you reach an informed decision. Please note that the service is not confidential and is not binding on any grievance committee panel.

Brad Johnson is an ethics attorney with the State Bar of Texas. 

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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