Securing Client Communications: ABA Issues New Ethics Opinion on Attorney-Client Email

ABA Issues New Ethics Opinion on Encryption of Attorney-Client Email

Extract from article by Jim Calloway

The ABA has released Ethics Opinion 477 (May 11, 2017) on encryption of attorney-client email. Those who do not want any rule requiring email encryption will rejoice if they skip down to the opinion’s conclusion and read: “A lawyer generally may transmit information relating to the representation of a client over the Internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. However, 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.”

ABA Issues Major Ruling on Ethics of Email and Electronic Communications

Extract from article by Robert Ambrogi

The American Bar Association’s Standing Committee on Ethics and Professional Responsibility has issued a major new opinion providing guidance on the steps lawyers should take to protect client confidentiality in electronic communications.

The new opinion, Formal Opinion 477 (embedded copy below), updates Formal Opinion 99-413, issued in 1999, to reflect changes in the digital landscape as well as 2012 changes to the ABA’s Model Rules of Professional Conduct, particularly the addition of the duty of technology competence in Model Rule 1.1 and changes to Rule 1.6 regarding client confidences.

Most notably, the opinion says that some circumstances warrant lawyers using “particularly strong protective measures” such as encryption. In the 1999 opinion, the committee concluded that unencrypted email was acceptable because lawyers have a reasonable expectation of privacy in all forms of email communications.

In this new opinion, the committee declined to draw a bright line as to when encryption is required or as to the other security measures lawyers should take.

ABA Formal Opinion 477 – Securing Communications of Protected Client Information