Cell phones and client confidentiality.

Cell phones are key in a lawyer's practice. But the client may not be the only one on the line. Here how to avoid spilling client confidences.

Take a look around during a break in the next CLE course you attend, and you're likely to see a bevy of lawyers reaching for their cellular telephones to check in with their offices or return calls to clients--scores of lawyers discreetly, and sometimes not so discreetly, huddled over their legal pads, taking notes at a furious pace and, presumably, discussing confidential client matters.

There has been an astoundingly rapid proliferation of cellular phone use in the United States. A recent study found that every two seconds a new subscriber signs up. The cellular phone industry grew 24 percent in 1999, and there were an estimated 100 million users in the United States alone at the end of last year.(1)

This has changed the way lawyers and clients interact. Clients, now armed with their own cell phones, can call their attorneys anytime (and virtually anywhere), and they often expect these attorneys to be available to take those calls. Consequently, many attorneys remain in nearly constant contact with their offices and clients, keeping both informed about case developments.(2) With the rapid expansion of the global economy and increasing client expectation for attorney responsiveness, cellular phones have become essential to a lawyer's survival in the competitive legal market.

Yet, chances are that many lawyers have not considered the implications of talking about confidential client matters on cell phones.(3) Because these calls can be intercepted by third parties, does an attorney who uses a cell phone to discuss client matters breach the ethical obligation to protect client confidentiality.(4) This article examines the ethical propriety of discussing confidential matters on cell phones and offers some practical guidelines that attorneys should consider before doing this.

Under the Model Rules of Professional Conduct, an attorney is prohibited from revealing confidential information about a client unless the client consents.(5) The duty created by the rule requires attorneys to take reasonable steps to avoid disclosing confidential information. These "include choosing a means of communication in which the lawyer has a reasonable expectation of privacy," according to the American Bar Association's Committee on Ethics and Professional Responsibility.(6)

Whether the use of a cellular phone to communicate with clients violates an attorney's duty of confidentiality, therefore, depends largely on if there is a reasonable expectation of privacy in the communication. Determining if an attorney has a reasonable expectation of privacy in a means of communication is a two-part inquiry: First, one must determine whether the attorney has a subjective belief that his or her chosen mode of communication is private. Second, the belief must be objectively reasonable.(7)

Reasonable expectations

There are two types of cellular phones --analog and digital--and the expected level of privacy in using each differs greatly. A simplified explanation of how these phones work will help explain why the expectation of privacy is different for each.

An analog cell phone, like an analog cordless phone, converts sound waves into radio waves to be broadcast over an FM radio band. The radio waves are then sent to low-power transmitters. These transmitters are in "cells" that can send and receive signals within a 5- to 12-mile radius,(8) "Interlocking" cells can be used to transmit calls over great distances.

To receive a call, an analog phone converts the radio waves back into sound waves. When a call is made using one of these phones, a single circuit is opened between the caller and the recipients and all signals in the communication between the two individuals travel along the single circuit.(9)

Conversations over analog phones are susceptible to interception by third parties. A variety of devices can be used to do this. These include programmable receivers, common scanners that have been altered to remove the manufacturer's blocking of cellular frequencies, scanners built before companies began blocking cellular frequencies, and even altered cellular phones.(10)

As one commentator explained,

   [T]ransmissions [from an analog phone] are readily audible to any person
   with a radio receiver within the area of the transmission's broadcast, if
   the transmission's frequency is within the scope of the radio receiver
   frequencies.... Once a broadcast transmission of a conversation is
   converted into radio waves, that transmission may be heard by any other
   receivers in the broadcast area capable of tuning into that transmission's
   frequency.(11)

Evidence of interception exists.(12) There are Internet news groups and print publications devoted to improving eavesdropping techniques. Some subscribers to these mediums have eavesdropped on lawyers. Furthermore, companies dealing in cellular phone security have reported that these phones are monitored.(13)

Digital cellular phones, on the other hand, work differently and are believed to provide greater security against interception. Digital cellular services break voices into "bits," break the "bits" into data packets, and then transmit each data packet independently along different routes in the network. When the packets reach their final destination, they are reassembled in the proper order.(14)

Because digital technology sends the data packets along different routes, as opposed to sending all the information along a single circuit, these signals are much more difficult to intercept.(15) If an eavesdropper attempts to listen into a digital conversation with a commercial scanner, the eavesdropper will simply hear "electronic noise," rather than the words of the conversation.(16)

Although digital phones do provide greater protection from interception than analog cell phones, commentators still caution that they are not completely secure. The level of protection from interception is determined by the "standard" used by the cellular provider(17) and whether or to what extent the provider encrypts the transmissions.(18)

Even if a digital phone is used, this does not necessarily mean the call is being transmitted through a digital network. The caller may be in an area in which digital service is not available, or the recipient may be on an analog or cordless phone or in an area that does not offer digital service. Most digital phones today have the capability of switching back and forth from digital to analog to address this very problem.

In short, it may not be appropriate for an attorney to assume that one always enjoys a reasonable expectation of privacy in using cellular devices.

Federal law

The Electronic Communications Privacy Act of 1986 (ECPA)(19) prohibits the intentional interception of wire, oral, and electronic communications.(20) Although cellular communications unquestionably fall within the "intercept" provisions of the act,(21) it is unclear whether they should be construed as wire, oral, or electronic.

This seemingly unimportant distinction becomes meaningful when applying the ECPXs privilege provision, which provides that the contents of an illegally intercepted wire or oral communication but not the contents of an illegally intercepted electronic communication are not admissible in evidence in any trial, hearing, or other proceeding.(22) Obviously, if a federal statute deems a communication "privileged," this enhances one's expectation of privacy in engaging in that communication.

At least one court has noted that it is reasonable to conclude that a cellular call can be deemed either a wire or an electronic communication.(23) But this makes little sense because the ECPA defines electronic communication as something other than oral or wire communications.

Despite this lack of clarity under the federal statute, several federal courts recently have concluded that cell phone users can have a reasonable expectation of privacy in cellular communications despite the possibility of interception. In Dunlop v. County of Inyo, the Ninth Circuit held that "the capability of monitoring [cellular communications] does not create implied consent to any monitoring that occurs. Cellular telephones and electronic mail are both technologies of questionable privacy, but we nonetheless reasonably expect privacy in our cell phone calls and e-mail messages."(24)

Similarly, the U.S. District Court for the Western District of New York, in Syposs v. United States, stated that

   there is no merit in plaintiffs' assertion that no privacy interest exists
   in Dr. Meyer's cell phone communications because such phone communications
   may be subject to interception by eavesdroppers.... The fact that the
   technology is not eavesdrop proof does not in itself defeat any expectation
   of privacy. One does not simply "tune in" to someone's cell phone
   conversation like dialing a favorite radio program. If there was no
   expectation of privacy of typical cell phone communications, it is doubtful
   this medium would be as widely used as it is.(25)

And in United States v. Kim, a federal court in Hawaii noted that since the passage of the privacy act, "cellular telephone communications have enjoyed the same privacy protections as standard telephone communications."(26)

One state appellate court has held to the contrary. In Salmon v. State, decided under Georgia's wiretapping statute, the court held that it was

   clear that the legislature did not intend to prohibit the interception of a
   cellular telephone conversation. After all, unlike line telephone
   communications, cellular telephone communications are not private. Why?
   Because cellular telephones transmit "FM" radio waves for anyone to hear.
   Thus. cellular telephone users have no justifiable expectation of
   privacy.(27)

Ethics opinions

While most courts may be leaning toward finding a reasonable expectation of privacy in cellular communications, not all bar associations are following suit. A number of state associations have issued ethics opinions on whether cell phone use violates a lawyer's duty to protect a client's confidentiality. While many of these opinions do, at least to some degree, permit the use of cell phones for client communications, most have imposed limits on their use for discussing confidential client matters.(28)

The Minnesota Lawyers Professional Responsibility Board, for example, recognizing the distinction between digital and analog cellular usage, found that "a lawyer may use technological means such as ... cellular telephones to communicate confidential information without violating Rule 1.6 ... [when] digital cordless and cellular telephones ... [are] used by a lawyer to transmit and receive confidential client information when used within a digital service area."(29)

However, the board said analog cell phones may be used "to transmit and receive confidential client information only if the lawyer obtains client consent after consultation with the client about the confidentiality risks associated with inadvertent interception."(30)

The distinction was based on the lack of security of analog phones. "Communications by analog cordless or cellular phones generally are considered insecure; they may be intercepted intentionally or inadvertently with unsophisticated and readily available equipment, such as other similar phones or scanners," the board noted.(31)

Most ethics opinions have not addressed the technological distinctions between digital and analog phones, in part, perhaps, because many bar associations spoke out on this issue before the widespread use of digital technology. Thus, opinions from these jurisdictions, which have not been supplemented with later pronouncements, place greater restrictions on cellular phone usage than does Minnesota.

For example, Arizona's Committee on the Rules of Professional Conduct has counseled that "just as a lawyer must not discuss sensitive matters in a crowded restaurant, so he or she must refrain from these discussions when using a portable telephone."(32) Nonetheless, the committee concluded that the "time has not yet come when a lawyer's mere use of a cellular phone to communicate with the client without resorting to a scrambling device or exculpatory language at the call's beginning constitutes an ethical breach."(33)

Other ethics opinions have concluded that an attorney is permitted to discuss confidential information with a client while on a cell phone only if the client first consents to the practice, regardless of the type of phone being used. For example, in Massachusetts, lawyers are warned that they

   should not discuss confidential information on a cellular telephone if
   there is any nontrivial risk that such information may be overheard by a
   third party, whether that third party is involved in the particular matter
   or not, unless the client, after full disclosure of the dangers to
   confidentiality, consents to such communication.(34)

In reaching this conclusion, the committee noted that "it is common knowledge that simply by monitoring the airwaves, strangers are able to intercept normal cellular telephone calls and that the cellular telephone is not a secure method of communication."(35)

Similarly, a New Hampshire ethics advisory opinion suggests that, because there is no absolute expectation of privacy in cellular conversations, a lawyer must tell a client on the phone that the lawyer is using a cell phone, that the communication is not secure, and that the confidentiality of the conversation is at risk. The lawyer also must explain the consequences of a breach of confidentiality.(36) Finally, some jurisdictions place the burden on the lawyer to determine whether the communication is appropriate and when disclosures to the client need to be made. For example, a North Carolina ethics opinion directs lawyers to take

   steps to minimize the risks that confidential information may be disclosed
   in a communication via a cellular or cordless telephone. First, the lawyer
   must use reasonable care to select a mode of communication that, in light
   of the exigencies of the existing circumstances, will best maintain any
   confidential information that might be conveyed in the communication.
   Second, if the lawyer knows or has reason to believe that the communication
   is over a telecommunication device that is susceptible to interception, the
   lawyer must advise the other parties to the communication of the risks of
   interception and the potential for confidentiality to be lost.(37)

Clearly then, a lawyer cannot assume that there is always a reasonable expectation of privacy in cellular communications and must take appropriate steps to make certain he or she will not be deemed to have breached a duty if confidential information is intercepted.

Practical guidelines

As cellular phones become more prevalent and demands on lawyers' time become even greater, it is likely that an increasingly large number of lawyers will use cell phones to communicate with clients. As technology improves, the likelihood increases that courts and ethics tribunals will find a reasonable expectation of privacy in cellular communications. However, lawyers should exercise caution, especially because ethics issues are not the lawyer's only concern. The client relationship may be at stake where highly confidential client information becomes public after a lawyer unthinkingly discusses it on an insecure cordless or analog phone.

Lawyers may want to keep in mind the following guidelines before using cell phones to discuss any confidential client information:

* Determine if the phone is the analog or the digital type. As discussed above, the technological differences in the two affect the level of privacy that a lawyer has in communications.

* Determine if the call is being processed through an analog or digital network. A lawyer should not assume a call is processed digitally simply because a digital phone is being used. The lawyer may not be in a digital service area, or the person at the other end might be using an analog phone or may be outside a digital service area. Most digital phones have a signal indicator that will show whether the call is being processed though a digital or an analog network.

* Determine and assess the type of encryption and standard that the cell phone provider uses.

* Consider purchasing a scrambler to prevent the interception of analog cellular calls if you frequently use a cell phone to call clients about confidential matters and are not confident that these calls are always handled by a digital network.(38)

* Check to see whether the bar associations in the states where you practice (and those where the clients with whom you speak are located) have issued ethical guidance or whether the legislatures or courts in those jurisdictions have ruled on the reasonable expectation of privacy in cellular communications.

* Check to see if your malpractice carrier has issued any guidance on the issue.

* Always use common sense and good judgment. When possible, use a land-line phone instead of a cell phone. Moreover, it may be worth telling your clients when you are using a cell phone, informing them of the risks of doing this, and providing them with the opportunity to consent.

* If in doubt, do not use a cell phone. The time you will save by using your cell phone rather than a land-line phone will not come close to the cost of failing to protect a client's confidences, which might include an increase in your professional liability insurance premiums.

Attorneys should be careful to use cellular communications consistent with developing case law and the positions taken by the state bars to which they are admitted. And, of course, they should remain sensitive to the confidentiality concerns of their clients at all times.

Notes

(1.) See Mobile Office, at http://www.mobileoffice. co.za/news_2000/news04202000_us_almost_100_million_cell_phone.htm (last visited Sept. 19, 2000).

(2.) See MODEL RULES OF PROF'L CONDUCT R. 1.4 (2000); see also MODEL CODE OF PROF'L RESPONSIBILITY EC 7-8 & EC 9-2 (1983).

(3.) This issue is analogous to using e-mail to exchange confidential client information. For a discussion of a lawyer's ethical obligation of client confidentiality and the use of e-mail, see Theresa E. Loscalzo & Matthew 14. Simmons, E-Mail and the Attorney-Client Privilege, TRIAL, Feb. 1999, at 20.

(4.) See MODEL RULES OF PROF'L CONDUCT R. 1.6 (1999); see also MODEL CODE OF PROF'L RESPONSIBILITY DR 4-101 (1983).

(5.) Id.

(6.) ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 99-413 (1999).

(7.) See generally Katz v. United States, 389 U.S. 347 (1967).

(8.) See Heidi L. McNeil & Robert A. Henry, Confidential Communication? Cellular and Cordless Telephones and the Attorney-Client Privilege, 34 ARIZ. ATTORNEY 20, 22 (1997); Privacy Rights Clearinghouse-Fact-Sheet #2: Wireless Communications: Cordless/Cellular Phones, at http://www.privacyrights. org/fs/fs2-wrie.html (last visited Oct. 12, 2000).

(9.) See United States Telecom Ass'n v. Federal Communications Comm'n, No. 99-1442, 2000 U.S. App. LEXIS 19967, at *40-*41 (D.C. Cir. Aug. 15, 2000).

(10.) Confidentiality: Electronic Communications, Laws. Man. on Prof. Conduct (ABA/BNA) No. 170, at 55:405 (Oct. 13, 1996).

(11.) Anthony S. Higgins, Comment, Professional Responsibility--Attorney-Client Privilege: Are Expectations of Privacy Reasonable for Communications Broadcast Via Cordless or Cellular Telephones? 24 U. BALT. L. REV. 273, 279-80 (1995).

(12.) Granted, given the number of cellular phones that are now in use, a very small percentage of calls actually are intercepted. See Tom Zeller, Telco, on the Go: Cellular Phones, COMMUNITY BANKER, Mar. 1, 2000, at 20.

(13.) Confidentiality: Electronic Communications, supra note 10, at 55:406.

(14.) See United States Telecom Ass h, No. 99-1442, 2000 U.S. App. LEXIS 19967, at *40-*41; USA Today, Privacy Groups Applaud Wiretap Rule, at http://www.usatoday.com/life/cyber/tech/cti407.htm (last visited Oct. 12, 2000).

(15.) Minnesota Lawyers Prof'l Responsibility Bd., Formal Op. 19 (1999); see generally TDMA v. CDMA, ephones, at http://www.ephones.com/resources/ tdmacdma.asp (last visited Oct. 12, 2000).

(16.) See Confidentiality: Electronic Communications, supra note 10, at 55:406.

(17.) Possible standards to be used by a cellular provider are PCS-1900/GSM, "Time Division Multiple Access" (TDMA), or "Code Division Multiple Access" (CDMA); see id. at 55:408.

(18.) Id. One authority has noted that "with digital transmissions, `only the professional eavesdropper will be able to afford the investment in equipment necessary to eavesdrop on a cellular conversation.'" Id.; see Privacy Rights Clearinghouse, supra note 8.

(19.) Pub. L. No. 99-508, 101-303, 100 Stat. 1848 (codified at 18 U.S.C. [subsections] 1367, 2510-21, 2701-10, 312-126). While cordless phones originally were excluded from the ECPA's protection because they were deemed to be neither wire nor electronic communications, the act was amended in 1994 to include cordless communications. 18 U.S.C. [sections] 2510 (2000). Nearly every state has passed laws circumscribing the circumstances under which it is permissible to "intercept" wire, oral, and electronic communications.

(20.) 18 U.S.C. [sections] 2511(1).

(21.) Id. [sections] 2511(1)(a); see also United States v. Carazana, 921 F.2d 1557, 1562 (11th Cir.), cert. denied, 502 U.S. 865 (1991).

(22.) 18 U.S.C. [sections] 2515.

(23.) Shubert v. Metrophone, Inc., 898 F.2d 401, 404 (3d Cir. 1990).

(24.) Nos. 96-15207, 96-15294, 96-15915, 1997 U.S. App. LEXIS 19249, at *8-*9 (9th Cir. July 23, 1997).

(25.) No. 97-CV-572S(F), 1998 U.S. Dist. LEXIS 21456, at **8-**9 (W.D.N.Y. Sept. 2, 1998).

(26.) 803 F. Supp. 352, 361 (D. Haw. 1992).

(27.) 426 S.E.2d 160, 162 (Ga. Ct. App. 1992), cert. denied, 1993 GA. LEXIS 267 (Ga. Feb. 25, 1993).

(28.) Ethics opinions generally are based on theoretical, as opposed to actual, interception. As previously noted, the percentage of calls actually intercepted is probably low; see Zeller, supra note 12.

(29.) Minnesota Lawyers Prof'l Responsibility Bd., supra note 15.

(30.) Id. (emphasis added).

(31.) Id. at comment.

(32.) Arizona Comm. on the Rules of Prof'l Conduct, Formal Op. 95-11 (1995). 33. Id.

(34.) Massachusetts Comm. on Prof'l Ethics, Formal Op. 94-5 (1994).

(35.) Id.

(36.) New Hampshire Ethics Comm., Formal Op. 1991-92/6 (1992); see also Iowa Supreme Court Bd. of Prof'l Ethics and Conduct, Formal Op. 90-44 (1990).

(37.) See North Carolina Bar Ass'n, Formal Op. 215 (1995); see also New York Bar Ass'n Comm. on Prof'l and Judicial Ethics, Formal Op. 1994-11 (1994).

(38.) See Confidentiality: Electronic Communications, supra note 10, at 55:406.

Theresa E. Loscalzo is a partner with Schnader, Harrison, Segal & Lewis in Philadelphia. She can be reached at [e-mail]. Alexander S. Helderman is an associate with the firm and can be reached at [e-mail].