In a recently-released ethics opinion, a committee of American Bar Association (“ABA”) opined that in some circumstances, an attorney has an obligation to warn an individual client that there is a risk that the client’s employer may gain access to e-mail or other electronic communications sent to or received from the attorney while the client is using a work computer. Formal Opinion 11-459, Duty to Protect the Confidentiality of E-Mail Communications with One’s Client.
Subject to certain enumerated exceptions, ABA Model Rule of Professional Conduct 1.6 (a) provides that an attorney may not reveal information relating to representation of the client without the client’s consent. In an August 4, 2011 opinion, the ABA Standing Committee on Ethics and Professional Responsibility took note of the fact that “[e]mployers often have policies reserving a right of access to employees’ e-mail correspondence via the employer’s e-mail account, computers or other devices, such as smartphones and tablet devices, from which their employees correspond.” In such circumstances, the opinion declares, “[c]lients may not be afforded a ‘reasonable expectation of privacy’ when they use an employer’s computer to send e-mails to their attorneys or receive e-mails from their attorneys.”
In light of the risk that confidential client information may be compromised when communications are transmitted from, or received on, an employer’s electronic equipment, the committee concluded that–
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, where there is a significant risk that a third party may gain access. In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party.