The Standard for Email Communications | Oregon Law Practice Management

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Oregon Law Practice

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Practice Management Tips for Oregon Lawyers

The Standard for

Email Communications
Posted on 05/04/2015
What is the standard for electronic client communications? Can lawyers freely
use email, without a worry or care about encryption?
In Odds & Ends Safeguarding Client Information in a Digital World, Oregon
State Bar General Counsel Helen Hierschbiel sets us straight:
The first ethics opinions that addressed the use of electronic
communications prohibited lawyers from using cell phones and unencrypted
e-mail. More recently, ethics authorities condone the practice, recognizing
that the expectation of privacy in these modern methods of communication
is comparable to and as reasonable as that of older methods of
communication. For example, ABA Formal Ethics Op 99-413 (1999) states:
E-mail communications, including those sent unencrypted over the
Internet, pose no greater risk of interception or disclosure than other
modes of communication commonly relied upon as having a
reasonable expectation of privacy The risk of unauthorized
interception and disclosure exists in every medium of communication,
including e-mail. It is not, however, reasonable to require that a mode of
communicating information must be avoided simply because

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The Standard for Email Communications | Oregon Law Practice Management

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interception is technologically possible, especially when unauthorized

interception or dissemination of the information is a violation of [the
law].

Does this mean lawyers get a free pass to use unencrypted email?
The answer is no, as Helen points out. Special precautions need to be taken if:
The information to be transmitted is particularly sensitive
The contents of the email are subject to a confidentiality agreement
The client instructs the lawyer to avoid using email

Can a client waive the security risks associated with unencrypted email?
Yes. If a client requests it, a lawyer may be allowed to use a particular type
of electronic communication notwithstanding expectations of privacy in the
communication method.

What role does metadata play?

As Helen notes, metadata may be a bigger danger than unauthorized
interception of email messages:
[C]ompetent representation requires that lawyers understand what
information may be hidden in documents that they plan to send by e-mail so
that appropriate steps can be taken to protect against inadvertent
disclosure of what could be confidential or sensitive information. See, e.g.,
Arizona Ethics Op 07-03(2007) (lawyer must take reasonable precautions
to prevent communication of metadata containing client information) and
ABA Formal Op 06-442.
Since Helens article was published, Oregon has issued its own metadata
opinion: Competency: Disclosure of Metadata, OSB Formal Opinion 2011-187.

Where does this leave us with encryption?

If your clients have consented to use of unencrypted email (or dont care) and
your messages are not particularly sensitive or subject to a confidentiality

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agreement, why should you give a whit about encryption? In a phrase: ease of
use.
What used to be difficult is no longer.
In the article Encryption So Easy a Lawyer Can Do It, Bob Ambrogi discusses
three incredibly simple solutions that allow lawyers to send encrypted
messages. No more clunky interface requiring the sender to transmit keys
before the recipient decrypts the message. No more need for both parties to
use the same software. (Although a simple plug-in may be needed, depending
on the software you choose.)
With secure cloud-based solutions like Enlocked, Virtru, or Delivery Trust from
Identillect, Ambrogi concludes:
What all three programs have in common is that they make encryption as
easy as the push of a button. If you use email to communicate with clients
or colleagues about sensitive matters and what lawyer does not? you
have no excuse not to encrypt.
[All Rights Reserved 2015 Beverly Michaelis]

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