Most lawyers know that regular email is inherently insecure. Sending a message via unencrypted email is no different than sending a postcard written in pencil through the post office.
Nevertheless, until recently, lawyers have used email for all client communications with the ethical blessing of the bar associations. Of course, the ethics opinions that permitted lawyers to use email to send confidential information to clients were handed down in the mid-1990s. Since that time, technology has greatly improved and bar associations have begun to reconsider lawyers’ obligations when it comes to electronic communications and protecting confidential client information.
For example, in Formal Opinion No. 11-459, issued by the American Bar Association’s Standing Committee on Ethics and Professional Responsibility in 2011, the Committee reached the narrow conclusion that, in employment cases, lawyers have an obligation to warn clients of the risk of discussing the case using employer-owned devices or accounts.
The Committee then offered the following very broadly-worded proposition, which was not limited to employment matters: “A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, to which a third party may gain access. The risk may vary. Whenever a lawyer communicates with a client by e-mail, the lawyer must first consider whether, given the client’s situation, there is a significant risk that third parties will have access to the communications. If so, the lawyer must take reasonable care to protect the confidentiality of the communications by giving appropriately tailored advice to the client.”
Then, earlier this year, the Texas Ethics Committee issued Opinion 648. At issue was whether lawyers may communicate confidential information using email . The Committee concluded that “considering the present state of technology and email usage, a lawyer may generally communicate confidential information by email. Some circumstances, may, however, cause a lawyer to have a duty to advise a client regarding risks incident to the sending or receiving of emails arising from those circumstances and to consider whether it is prudent to use encrypted email or another form of communication.”
In other words, the standard for using electronic communications to share confidential information with clients is changing as technology evolves. Even so, some lawyers continue to share confidential information with clients via unencrypted email.
In fact, according to American Bar Association’s 2014 Legal Technology Survey report, 53% of lawyers report sharing confidential or privileged information with their clients using unencrypted email at least one or more times each day and 22% report sharing this type of information one to four times per week according to the Report.
The Report also indicates that although lawyers are aware of the security issues presented by email, very few take steps to address them. Surprisingly, 73% of lawyers indicate that they attempted to preserve confidentiality solely by relying on a confidentiality statement contained in the message. Other steps taken by responding attorneys included relying on a statement of confidentiality in the message’s subject line (25%), requiring clients to provide written consent (13%), or requiring clients to provide oral consent (9%).
The good news is that many lawyers are now using some form of encrypted email or are migrating to web-based client portals as a more secure method of client communication. One of the reasons lawyers choose to use online portals for client communication is because some cloud-based law practice management software incorporates encrypted client communication right into the platforms, offering law firms a secure, ready-made solution to the email problem.
That’s why, according to the Report, lawyers are increasingly using secure online portals. In fact, the number of lawyers communicating and collaborating with clients online increased every year from 9% in 2011 to 19% in 2012, 32% in 2013, and 33% in 2014.
The client portal of choice for solo lawyers? MyCase. According to the Report, 1/3 of all solo lawyers using web-based client portals reported that they prefer the portal built into the MyCase.
For more interesting—and sometimes eye opening—statistics about lawyers, email, and encrypted communications, check out the infographic below.
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