The sigh of relief that greeted the American Bar Association's recent ethics opinion dealing with e-mail encryption, No. 99-413, was almost audible. The 10 members of the ABA's Standing Committee on Ethics and Professional Responsibility found that "a lawyer may transmit information relating to the representation of a client by unencrypted e-mail" without violating the 1998 Model Rules of Professional Conduct. Plain, unencrypted e-mail "affords a reasonable expectation of privacy from a technological and legal standpoint," wrote the committee.
"I'm afraid that the opinion will be interpreted simply as saying that attorneys don't have to worry about the security of e-mail. This is not what the ABA opinion says at all," says Jerry Lawson, a legal technology consultant in Burke, Va. His warning may be lost in the pop of champagne corks: The ABA says we don't have to encrypt!
The ABA committee did note that all forms of communication are vulnerable. But "snoops can and do take advantage of the vulnerability of e-mail in ways that harm lawyers and their clients, while making the existence of the attorney-client privilege a quaint irrelevancy," says Mr. Lawson. He recommends using even weak encryption products to be on the safe side. Details at www.netlawtools.com.
About two dozen state bar associations have reached the same conclusion, but because of the ABA's size--almost half of the nation's 900,000 lawyers are members--its opinion may carry more weight with judges facing attorney-client privilege questions. There is still no case law directly on point.
Peter Krakaur, a San Francisco attorney who maintains a Web site at www.legalethics.com, says he is relieved that the ABA finally spoke to the issue. "The opinion will be a secondary resource that a court may follow," he says. "My worry was that a court would rely on an article saying 'an e-mail is like a postcard.' I've already heard judges quoting that expression in speeches."
A new metaphor is in an article at www.mgovg.com/ethics/netethic.htm. The author writes that "unencrypted Internet e-mail is more analogous to a whispered conversation in Grand Central Station at rush hour." Judges, change your speeches accordingly.
Charles R. Merrill, head of the computer and high-tech practice group at Newark, N.J.'s McCarter & English, is an encryption advocate. He says it's important to note, as the New York and Pennsylvania ethics committees did, that technology changes over time, and thus so may ethical standards. Some newer encryption software have a "one-click to encrypt" option. The granddaddy of encryption, Pretty Good Privacy (PGP), is easier than ever, and still free in many cases, at www.pgpi.com. Utah state courts are working with Verisign, at www.verisign.com. A ruling from the U.S. Court of Appeals for the 9th Circuit may encourage the wider use of encryption. [See story, Page A8.]
Encryption goes beyond e-mail. NetDox Internet messaging, at www.netdox.com, provides secure digital delivery of "any file, any time." The United Parcel Service, at www.ups.com , delivers digitally, via UPS Document Exchange.
"Making a pronouncement without recognizing that tech standards may change is a little out of step" with reality, Mr. Merrill says, adding that there is an obligation to keep pace with technology. He points to The T.J. Hooper, 60 Fed 737 (2nd Cir. 1932), a case in which a tugboat captain was faulted for not communicating using modern methods: He did not have a radio on board ship.
Failing to encrypt may appear negligent to a client, whose opinion matters more than the ABA's. "People have to educate themselves, as they did on the year-2000 issue," Mr. Merrill urges. He places slides from his lectures on encryption at www.pkilaw.com. He says he knows of at least 20 law firms that encrypt with at least one client.
Education for now means reading the ABA opinion. The demand has been so great, says George Kuhlman, who serves as ethics counsel to the ABA and counsel to the Committee on Ethics, that the ABA, which usually charges for ethics opinions, decided to make this one available free on the Web, at the American Bar Association.
The salient point in the ABA's opinion is this: "A lawyer should consult with the client and follow her instructions... as to the mode of transmitting highly sensitive information...." That recommendation, despite its use of the female pronoun, is not attracting much attention. How many attorneys who are not working on megamergers discuss their method of communication with clients?
If clients phone from their cars, how many attorneys remind them that the communication is not secure? Can you e-mail from home on your child's America Online account? If attention is paid to these issues, the impact of the ABA opinion may indeed be significant.
This article is reprinted with permission from the May 17, 1999 edition of The National Law Journal. © 1999 NLP IP Company. LawNewsNetwork.com.