Thinking Ethics Warning: This Email May Be Monitored or Recorded, 030112 KSBJ, Vol. 81 J. Kan. Bar Assn 3, 11 (2012)

Thinking Ethics Warning: This Email May Be Monitored or Recorded

Vol. 81 J. Kan. Bar Assn 3, 11 (2012)

Kansas Bar Journal

March 1, 2012

Mark M. Iba, Stinson Morrison Hecker LLP, Kansas City, Mo.

In a relatively short period of time, email has become a routine if not the predominant means for communication between lawyers and their clients. Just as lawyers need to take care when talking to a client in a setting where their conversation may be overheard, lawyers need to exercise caution and remind their clients to exercise caution to preserve the confidentiality of email communications. In the last Thinking Ethics column, Nick Badgerow highlighted ABA Formal Opinion 11-460, which concluded that none of the Model Rules of Professional Responsibility requires an employer's lawyer to notify an opposing employee's counsel if the employee's privileged emails are found on the employer's email system.1 Although an employee's use of an employer's email system appears to be the most common context in which this question has arisen, there are a number of circumstances in which email communications with a client may lose any protection of confidentiality. As a result, at the same time it issued the aforementioned opinion, the ABA also issued Formal Opinion 11-459, which states that a lawyer ordinarily must warn clients about the risk of sending or receiving electronic communications from a computer or other device to which a third-party may gain access. The opinion identifies several settings in which the confidentiality of a client's email may be jeopardized: • use of an employer's email system (whether by computer, smart phone, tablet, or other electronic device);

• use of an employer's computer or other device to access personal email accounts;

• use of a public computer, such as at a library or hotel, to which third parties may have access;

• use of a borrowed computer; and

• use of a home computer to which others have access (this problem commonly arises in matrimonial disputes).

The client's use of an employer's email system to communicate with her lawyer has been the subject of several cases that have reached varying results depending on the facts and particular states' laws. Often, employers have policies restricting personal use of their email systems and giving them the right to monitor use of their devices and to retain or review any communications, even personal communications, made with the device. Some courts...

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