By Nerino Petro at 24 February, 2009, 6:57 pm
Using free email services to communicate with clients has been an issue facing the legal profession for years. Many of the free email providers scan email passing through their systems for advertising purposes raising the specter of unauthorized access to and disclosure of confidential information in violation of the Rules of Professional Conduct. However, at least one bar association has come decided that there is no greater risk of accidental disclosure or breach of confidentiality than with other email providers.
Opinion 820-2/08/08 of the New York State Bar Association Committee on Professional Ethics was faced with the following question:
May a lawyer use an e-mail service provider that scans e-mails by computer for keywords and then sends or displays instantaneously (to the side of the e-mails in question) computer-generated advertisements to users of the service based on the e-mail communications?
A lawyer may use an e-mail service provider that conducts computer scans of e-mails to generate computer advertising, where the e-mails are not reviewed by or provided to other individuals.
In reaching this conclusion, the Committee reviewed prior NYSBA Ethics Opinion; the fact that the email service provider in question used a computer to generate the targeted ads; and, the fact that under the email service providers privacy rules no one other than the sender and the recipient would see the actual message, to determine that no violation of the Rules of Professional Conduct occurs when sending email through this provider. However, the Committee also issued these words of caution:
We would reach the opposite conclusion if the e-mails were reviewed by human beings or if the service provider reserved the right to disclose the e-mails or the substance of the communications to third parties without the sender’s permission (or a lawful judicial order). Merely scanning the content of e-mails by computer to generate computer advertising, however, does not pose a threat to client confidentiality, because the practice does not increase the risk of others obtaining knowledge of the e-mails or access to the e-mails’ content. A lawyer must exercise due care in selecting an e-mail service provider to ensure that its policies and stated practices protect client confidentiality.4 Unless the lawyer learns information suggesting that the provider is materially departing from conventional privacy policies or is using the information it obtains by computer-scanning of e-mails for a purpose that, unlike computer-generated advertising, puts confidentiality at risk, the use of such e-mail services comports with DR 4-101.
Personally, I still would not use any free email providers such as Gmail, Yahoo Mail, MSN, etc. to send confidential or privileged communications, unless I had no other options. If you have information that would be extremely damaging to you or your client, I wouldn’t send it by email in any event. If it’s something that you would be embarrassed to have appear on the front page of the newspaper, you shouldn’t send it by email.
Hat tip to Sestino Barone for posting to the LinkedIn Solosez Friends group with this story.