No encryption required for attorney-client e-mail.

Attorneys may send documents and other information to their clients by unencrypted e-mail without getting into ethical hot water under the American Bar Association's (ABA) Model Rules of Professional Conduct.

"The committee believes that 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 ABA's Standing Committee on Ethics and Professional Responsibility wrote in Formal Opinion No. 99-413 (available on the Internet at http://www.abanet.org/cpr/ethicopinions. html).

Committee chair and Baltimore attorney M. Peter Moser said the ethics group received many inquiries on the topic and that there was "a divergence of feeling among a number of bar association committee members, so we thought we should review it. It generated a tremendous amount of discussion."

In reaching its conclusion, the committee analyzed the general standards lawyers must follow to protect confidential client information from inadvertent disclosure; compared the risk of interception of unencrypted e-mail with other forms of communication, such as faxes and traditional telephones; and reviewed different forms of e-mail transmission, the risks of unauthorized disclosure, and law affecting unauthorized interception and disclosure.

The committee noted that every form of communication carries unauthorized interception and disclosure risks, but it said, "It is not ... reasonable to require that a mode of communicating information must be avoided simply because interception is technologically possible, especially when unauthorized interception or dissemination of the information is a violation of law."

The ethics committee, relying on case law and professional literature, said that lawyers undisputedly have a reasonable expectation of privacy in communications made by mail and by land-line telephones.

Committee members, however, urged lawyers to "take heightened measures" to preserve faxed communications. They expressed no opinion on the use of cellular and cordless telephones in attorney-client communications, noting that "authority is divided as to whether users have a reasonable expectation of privacy" in their phone conversations.

"Common sense is the word," Moser said. "If you have something that's really sensitive, you should talk to your clients and find out how they want [to communicate with you]."

The committee emphasized that commonsense approach, writing that "the conclusions reached in this opinion do not, however, diminish a lawyer's obligation to consider with her client the sensitivity of the communication, the costs of its disclosure, and the relative security of the contemplated medium of communication."

The committee noted that several state bar associations that have issued ethics opinions on the use of e-mail over the Internet have required express client consent to its use due to the susceptibility of message interception.

"More recent opinions reflecting lawyers' greater understanding of the technology involved approve the use of unencrypted Internet e-mail without express client consent," the committee wrote.