Confidentiality issues in high-tech communications; is the attorney-client privilege at risk?

Like millions of other people in modern society, a lot of attorneys are now using hightech electronic equipment to communicate with each other and with clients. Unfortunately, the use of these new communication devices can present unexpected ethical and malpractice issues.

Specifically, competence and confidentiality issues can arise from communicating with clients by cordless telephone, cellular telephone, computer e-mail, and the World Wide Web. The good news is that these high-tech duties are fairly clear.

The duty of competent representation and the duty of confidentiality exist under disciplinary and tort law.(1) The overlap of these two duties is particularly apparent in the field of electronic communications. The lawyer who uses high-tech equipment to communicate with clients must take reasonable care to ensure that

* conversations that can be covered by attorney-client privilege are protected,

* unprivileged conversations are reasonably protected from disclosure, and

* the client is aware of the risks associated with using less-than-secure means of communication.(2)

Land-line telephone calls

No one doubts that the attorney-client privilege can apply to traditional land-line telephone conversations. Similarly, it is well established that these phone conversations are subject to Fourth Amendment protection against unreasonable search and seizure due to the speakers' reasonable expectation of confidentiality.(3)

In part, the reasonableness of the expectation of confidentiality is a matter of fact. We know from our own experience that relatively few traditional telephone calls are intercepted. In part, the reasonableness of this expectation is also a result of federal, if not state, statutory law covering interception and unauthorized use of telephone calls.(4)

A summary of the federal law follows:

* When a land-line phone call is "intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department officer, agency, regulatory body, legislative committee, or other authority of the United States ... if the disclosure of that information would be in violation of" the federal communications laws.(5)

* Someone who "intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept" a wire communication violates the federal communications laws.(6)

* Civil damages are provided for "any person whose wire ... communication is intercepted, disclosed, or intentionally used in violation of this chapter. ..."(7)

* The law provides that the unintentional interception of a wire communication does not, without more, waive any otherwise available privilege.(8)

We know that the level of technology required to intercept traditional telephone calls is not high, so people with reasonable skills who are motivated to do this probably can. Further, we know that there are times when government authorities can obtain an order allowing a lawful wiretap. We also know that someone may pick up an extension telephone and secretly listen.

None of these disclosure risks overcomes the general availability of the attorney-client privilege or Fourth Amendment protection, because a reasonable expectation of confidentiality or privacy need not be a 100 percent guarantee.

Suppose, however, that unknown to the attorney and the client and without any fault or error on their part, someone does intercept their communications. Is the privilege lost?

The answer should be no for two reasons. First, the federal statutes are dispositive. Second, the presence of unknown eavesdroppers should not result in a waiver of privilege in any event.(9)

Cordless and cellular telephones

Some court decisions and ethics opinions have held that communications by cordless telephones are not subject to attorney/client privilege or to a reasonable expectation of privacy for Fourth Amendment purposes. These decisions are premised in part on the allegedly greater likelihood that those calls might be intercepted and in part on the lack of statutory prohibitions against intercepting those kinds of calls.(10)

There have also been decisions to the contrary. Some courts have noted that improved technology offers a reasonable expectation of privacy, and others have excluded evidence obtained as a result of illegal monitoring of cordless telephone calls.(11)

Most important, the 1994 amendments to 18 U.S.C.A. [subsections] 2510(1) and 2512(A) (Supp. 1996) now protect cordless telephone calls as a matter of federal law in the same manner and to the same extent that they protect traditional land-line calls.(12)

The adoption of criminal or civil prohibitions against interception of calls and of limitations on the uses to which intercepted conversations can be put does not make interception technologically more difficult. It merely increases the cost and reduces the benefit of intentional interception.

Nonetheless, the 1994 federal amendments should result in a uniform holding that the privilege is available for cordless telephone conversations. It is now clear, for example, that under 18 U.S.C.A. [sections] 2517(4) (Supp. 1996) an otherwise available privilege is not lost as a result of innocent or intentional interception. Also, under 18 U.S.C.A. [sections] 2515 (1970), intentionally intercepted cordless telephone calls cannot be introduced into evidence even if they are not otherwise subject to any claim of privilege.

A holding that the privilege did not exist would be appropriate if one or both participants in a cordless telephone conversation knew that someone was listening, but that example is merely a specific application of the traditional rule that the presence of a third party waives the privilege.(13) Similarly, existing authorities establish that a Fourth Amendment violation does not exist with respect to a traditional telephone call if one of the participants authorizes a third party to listen.(14)

As with cordless telephones, a number of state bar ethics opinions have stated that conversations over cellular telephones are not subject to attorney-client privilege.(15) None of these opinions, however, adequately considered that cellular telephone conversations are subject to the full range of criminal sanctions and prohibitions outlined above and that these calls are protected against warrantless search and seizure.

Moreover, most of us know from personal experience that it is now a relatively rare phenomenon to have these calls intercepted. For these reasons, it seems clear that attorney-client privilege applies to cellular telephone conversations.

Computer communications and faxes

If a lawyer's computer and a client's computer communicate directly over normal telephone lines, the fact that the lawyer and the client are communicating in bits and bytes rather than by voice should not affect the availability of the attorney-client privilege. The same result should follow when a lawyer's computer and a clients computer communicate through a reputable e-mail provider (for example, CompuServe or Easy Link) that pays attention to security and access issues.

In those cases, the expectation of confidentiality is, as a factual matter, the same as that for traditional telephone calls. The same statutory protections cited above also apply to electronic communications: "Electronic communication means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photo-optical system that affects interstate or foreign commerce...."(16)

There seems to be no question that faxes are subject to the attorney-client privilege. Although much has been written about the effect of a misdirected fax on a claim of privilege and about a lawyers duty upon receipt of a misdirected fax, no one asserts that the use of a fax machine or the possibility of misdirection destroys any hope of a claim of privilege.

The case for privilege is also buttressed by the fact that the only cases to reach the issue have held that attorney-client privilege applies to e-mail messages sent between in-house counsel and the client.(17)

When lawyers and clients communicate electronically via the World Wide Web, however, the case for attorney-client privilege is less clear than in direct communications, because there is a greater risk of eavesdropping on the Web.

Computer-to-computer conversations differ from Web communications in the number of stops made by the information as it travels from sender to receiver. A Web communication typically will pass through a series of host computers on its way to a final destination.

Although each link from computer to computer may be a normal telephone line, the communication is subject to interception at each of the host computers.

The question then becomes whether this greater possibility of interception eliminates the possibility of privilege. In our opinion, it should not.

We know from experience that the majority of messages sent via the Web are not intercepted. The risk of interception on the Web, in fact, may be no greater than the risk of a break-in at a private law office or the risk that someone might steal a lawyer's briefcase containing confidential client papers about a case.(18)

The critical federal prohibitions and limitations are again just as applicable. Computer-to-computer communications via telephone lines are electronic communications within the meaning of 18 U.S.C.A. [sections] 2510(12) (Supp. 1996). In addition, interim computers are statutorily protected under 18 U.S.C.A. [subsections] 2510(14)-(17), 2701(a), 2702(a) (Supp. 1996).

Although Web messages are subject to review by those who monitor or maintain the system, similar monitoring is permitted for traditional telephone calls without any loss of privilege. There is no reasonable argument against privilege unless the presence of an eavesdropper is known.

We therefore disagree with opinions such as those expressed by the South Carolina ethics committee, which concluded that

even assuming that ... communications

occurred through private electronic mail rather

than through public notices on electronic

bulletin boards, the very nature of online services

is such that the system operators of the online

service may gain access to all communications

that occur on the online service. Thus, the

confidentiality requirements under Rule 1.6

are implicated by any confidential

communication which occurs across electronic media,

absent an express waiver by the client.(19)

There is one category of electronic communication that we would not expect to see covered by the attorney-client privilege: the use by an employee of an employer's computer system to communicate with a personal lawyer about a claim against the employer. If the employee knew that the computer system was the property of the employer and that the employer was free to monitor communications sent via the computer system, a court would likely conclude that a sufficiently reasonable expectation of confidentiality was lacking and that the privilege was therefore inapplicable.(20) Counsel whose clients may be tempted to communicate under similar circumstances should advise them to find other means of communication.

Attorney-client privilege is not everything. Lawyers also owe their clients a duty of reasonable care. A client with a sensitive issue to discuss is likely to be quite unhappy if use of high-tech communications allows others to become aware of the issue. If the lawyer fails to take adequate precautions or fails to warn the client of potential risks, the client could sue the lawyer and win. This is so even if the attorney-client privilege is not lost.(21)

Lawyers who communicate sensitive matters to clients by means that involve additional risk should at least consider discussing with clients the risk of intentional or inadvertent interception as well as the potential practical and legal consequences of interception.

As technology becomes easier to use, lawyers should also consider discussing the use of encryption to protect misdirected documents. Encryption involves encoding documents so they can be read only by the intended recipient. This may be helpful, since the applicable statutes may not protect against unintentional or inadvertent interception that could result, for example, from a misdirected e-mail message.

In short, the bad news is that lawyers must keep pace with changing technology. The good news is that, from a professional perspective, there is little to fear.

The new world looks very much like the old one.

Notes

(1.) See, e.g., MODEL RULES OF PROFESSIONAL CONDUCT Rules 1.1, 1.6 (1983); RONALD E. MALLEN & JEFFREY M. SMITH, 2 LEGAL MALPRACTICE [subsections] 14.5, 16.5 (4th ed. 1996).

(2.) See CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, MODERN EVIDENCE [sections] 5.13 (1995) ("reasonable steps" to safeguard confidentiality, are required).

(3.) See, eg., Katz v. United States, 389 U.S. 347, 350-53 (1967) (call made from telephone booth intercepted by listening device placed on outside of booth held subject to Fourth Amendment protection).

(4.) For state statutes, see, eg., OR. REV. STAT. [subsections] 165.535-45 (1988); WASH. REV. CODE [subsections] 9.73,010-250 (1994).

(5.) 18 U.S.C.A. [sections] 2515 (1992).

(6.) Id. [sections] 2511(1)(a) (Supp. 1996).

(7.) Id. [sections] 2510(a) (Supp. 1996).

(8.) Id. [sections] 2517(4) (Supp. 1996).

(9.) See generally Castano v. American Tobacco Co., 896 F.Supp. (E.D. La. 1995); JACK B. WEINSTEIN ET AL., 2 WEINSTEIN'S EVIDENCE [sections] 503(b)[02], at 503-52 (1996).

(10.) See, eg., McKamey v. Roach, 55 F.3d 1236, 1238-39 (6th Cir. 1995 In re Askin, 47 F.3d 100, 103-04 (4th Cir. 1995).

(11.) See, eg., United States v. Smith, 978 F.2d 171, 180 (5th Cir. 1992), cert. denied, 113 S. Ct. 1620 (1993); State v. Faford, 910 P.2d 447 (Wash. 1996).

(12.) McKamey, 55 F.3d 1236, 1240-41.

(13.) See generally Stark Street Properties, Inc. v. Teufel, 562 P.2d 531 (Or. 1977); State v. Sheppard, 763 P.2d 1232 (Wash. Ct. App. 1988).

(14.) See, eg., United States v. Black, 472 F.2d 130, 131-132 (6th Cir. 1972), cert. denied, 411 U.S. 969 (1973); Olney v. United States, 380 F.2d 28, 28-29 (9th Cir. 1967).

(15.) See Massachusetts Ethics Op. No. 94-5 (1994); New York City Bar Ass'n Op. No. 1994-11 (1994); Iowa Ethics Op. No. 90-44 (1991).

(16.) 18 U.S.C.A. [sections] 2510(12) (Supp. 1996).

(17.) State v. Canady, 460 S.E.2d 677, 689-92 (W. Va. 1995); National Employment Serv. Corp. v. Liberty Mut. Ins. Co., No. 93-2528-G, 1994 WL 878920 (Mass. Super. Ct. Dec. 12, 1994).

(18.) BENJAMIN WRIGHT, THE LAW OF ELECTRONIC COMMERCE ET2:3-5 (2d ed. 1995).

(19.) South Carolina Ethics Advisory Committee Op. No. 94-27 (1994).

(20.) United State v. Sababu, 891 F.2d 1308, 1329 (7th Cir. 1989) (no expectation of privacy exists where caller is on notice that prison officials are authorized to monitor prison inmates' calls).

(21.) Cf. Goldsborough v. Eagle Crest Partners, Ltd., 838 P.2d 1069 (Or. 1992) PacifiCorp v. Department of Revenue, 838 P.2d 914 (Mont. 1992). See also McGee v. United States, 154 F.2d 101, 105 (2d Cir. 1946) ("The standard of care in any situation is determined by balancing the risk against the cost of precaution.").

Peter R. Jarvis is a partner with Stoel Rives in Portland, Oregon. Bradley F. Tellam is a partner with Lane Powell Spears Lubersky in Portland.