New ABA Ethics Standard On Email Communication With Clients

Email: since the late-1990s it’s been commonplace for attorney-client communications. That’s because in 1999, the American Bar Association gave lawyers the green light to use email. But a lot has changed since then. Technology has advanced at an incredible rate over the last decade and there are now far more secure alternatives available for communicating with clients.

The effects of this rapidly changing technological landscape were recognized earlier this month by the ABA when it issued Formal Opinion 477. In this opinion, the ABA Standing Committee on Ethics and Professional Responsibility concluded that because there are more secure electronic communication methods available in 2017, lawyers will need to consider avoiding email for some client communications and use other, more secure electronic methods instead.

In the past, a few ethics ethics committees have reached this same conclusion, but some interpreted these opinions to require lawyers use more secure communication methods only in specific situations, such as within the context of employment litigation. (See, for example, ABA Formal Opinion 11-459 (2011), Texas’ Ethics Opinion 648, and Washington’s Opinion 2016-01.

In Formal Opinion 477, the Ethics Committee went one step further, concluding that “a lawyer may be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.”

As explained in the opinion, lawyers must take into consideration a number of different factors when determining the best, most secure method for communicating with clients. This determination must be made on a case-by-case basis and issues to be considered include:

  • the sensitivity of the information;
  • the likelihood of disclosure if additional safeguards are not employed;
  • the cost of employing additional safeguards;
  • the difficulty of implementing the safeguards; and
  • the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).

The Committee explained that “(a) fact-based analysis means that particularly strong protective measures, like encryption, are warranted in some circumstances.” The Committee also cautioned that while using unencrypted email may be appropriate for routine or low sensitivity communications, due to “cyber-threats and (the fact that) the proliferation of electronic communications devices have changed the landscape…it is not always reasonable to rely on the use of unencrypted email.”

As suggested by the Committee, there are a number of different options available for lawyers when unencrypted email is insufficient to protect confidential communications: “A lawyer has a variety of options to safeguard communications including, for example, using secure internet access methods to
communicate, access and store client information (such as through secure Wi-Fi, the use of a Virtual Private Network, or another secure internet portal)…”

One of the most common and cost-effective online communication portals available to lawyers are the web-based client portals often built into legal practice management software. Using these online portals you can communicate and share case-related information with your clients, all in one convenient, secure location. The cumbersome back and forth process of unsecure, threaded emails is a thing of the past and is instead replaced by the ability to securely communicate in an encrypted, controlled online environment.

Interested in learning more about how online client portals can help your law firm communicate securely with clients in the wake of the ABA’s new ethics standard for client communication? Then check out this infographic to learn more about the security issues presented by email and  this infographic for information on the benefits of secure online portals.

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