Cba Ethics Committee Opinion

• Publication year: 1993
• Pages: 21
• Citation: Vol. 22 No. 1 Pg. 21

22 Colo.Law. 21 Colorado Lawyer 1993.

1993, January, Pg. 21. CBA Ethics Committee Opinion

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Vol. 22, No. 1, Pg. 21

CBA Ethics Committee Opinion

Formal Opinion No. 90: Preservation of Client Confidences in View of Modern Communications Technology

Adopted November 14, 1992

INTRODUCTION

In recent years, there have been significant advances in communications technology. In addition, the cost of many modern communications devices has been decreasing such that the use of cordless telephones, cellular telephones and facsimile machines has become commonplace. It can be expected that new or improved methods of communications devices will continue to be developed.(fn1) The use of these communications devices carries the increased risk of intentional or inadvertent eavesdropping onto what are intended to be confidential discussions. Therefore, lawyers must be mindful of their duty under Rule 1.6 of the Colorado Rules of Professional Conduct and Canon 4 of the Code of Professional Responsibility to preserve client confidences when utilizing advanced communications technology.

SUMMARY OF OPINION

A lawyer must exercise reasonable care when selecting and using communications devices in order to protect the client's confidences or secrets from unintended disclosure.

ANALYSIS

One of the most basic and time-honored precepts of the practice of law is that communications between a lawyer and a client are confidential. Lawyers also frequently engage in discussions which may not fall within a technical privilege, but which at least are sensitive enough that the lawyer would not want the conversation to be overheard. It necessarily follows that a lawyer has a duty to exercise reasonable care to protect the confidentiality of such communications.

A lawyer's duty to preserve confidences and secrets has been codified in, inter alia, Rule 1.6 of the Colorado Rules of Professional Conduct, the comment to which states that "a fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation," as well as in Canon 4 of the Code of Professional Responsibility, which requires that "a lawyer should preserve the confidences and secrets of a client." The lawyer also owes a duty of reasonable care to prevent the lawyer's employees, associates and others whose services are used by the lawyer from disclosing confidential communications [Colorado Rules of Professional Conduct 1.6(d) and Code of Professional Responsibility DR 4-101(D)].

Ever-increasing varieties of communications products are available for a lawyer's use, such as cordless telephones, cellular telephones, facsimile machines, voice messaging and computer modems. Communications by means of these devices are more easily subject to interception than more traditional forms of communications. It is reasonably expected that in the future, there will continue to be technological advances

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which will facilitate both the communication of information and the interception of such communications

For instance, cordless telephones are now in widespread use. However, communications by means of cordless...