American Bar Association Issues Formal Opinion 11-459
On September 7, 2011, the American Bar Association announced in a press release that lawyers have a duty to caution their clients about communicating with them via e-mail using an employer-owned device. The ABA rationalized that the confidentiality of such communications could be jeopardized, since many employers have policies reserving the right to access employees’ work e-mail accounts and computers. As such, employers have the opportunity to intercept information without legal barrier, and might be particularly prone to do so when an individual is engaged in a dispute relating to his or her employment.
The ABA’s Formal Opinion 11-459 provides guidance on how lawyers should advise their clients in light of this newly recognized duty. The opinion emphasizes that under the Model Rules of Professional Conduct, a lawyer is required to act competently to protect the confidentiality of a client’s information, which requires that he or she exercise reasonable care to protect attorney-client privileged e-mail communications. According to the ABA, “as soon as practical after a client-lawyer relationship is established, a lawyer typically should instruct the employee-client to avoid using a workplace device or system for sensitive or substantive communications, and perhaps for any attorney-client communications, because even seemingly ministerial communications involving matters such as scheduling can have substantive ramifications.” The specific factors that establish the lawyer’s duty to inform a client include, but are not limited to: 1) the client has engaged in, or has indicated an intent to engage in, e-mail communications with the attorney; 2) the client is employed in a position that would provide access to a workplace device or system; 3) given the circumstances, the employer or third party has the ability to access the e-mail communications; and 4) as far as the lawyer knows, the employer’s internal policy and jurisdiction’s laws do not clearly protect the privacy of the employee’s personal e-mail communications via a business device or system.
One option to safeguard both the lawyer’s ethical duty and client confidentiality is to enter into a representation agreement that requires clients to refrain from communicating with their attorneys via employer-owned devices.
To read the entire ABA opinion, click here: