Vol. 12, No. 1, Pg. 28. Confidentiality on the Internet.

• Author: By Toby Brown

South Carolina Lawyer

2000.

Vol. 12, No. 1, Pg. 28.

Confidentiality on the Internet

28Confidentiality on the InternetBy Toby Brown"The attorney-client privilege is in fact the oldest confidential communications privilege known in the common law. It is therefore not only an interest long recognized by society but also one traditionally deemed worthy of maximum legal protection." American Tobacco Company v. State, 697 So.2d 1249 (Fla. 4th DCA 1997).

"A lawyer may transmit information relating to the representation of a client by unencrypted e-mail sent over the Internet ...." Formal Opinion No. 99-413, March 10, 1999. ABA Standing Committee on Ethics and Professional Responsibility.

These two statements, juxta- osed, present an interesting dichotomy. The legal profession seems to have a split-personal- ity on the issue of client confidentiality. On one hand, the profession cries for "maximum legal protection." On the other, it is comfortable with what is convenient. This article explores the issue of lawyers utilizing the Internet to store and communicate client information. Current opinions on the need to protect this information differ.

The current debate on Multidisciplinary Practice (MDP) has reinvigorated the concept of confidentiality. ( The debate over MDP is well documented at www.abanet.org/cpr/multicom.html.) Client confidentiality is defined as one of the three pillars of the profession. Both sides of the MDP dialogue agree that, whatever the outcome, confidentiality must be preserved. Given the level of agreement by lawyers on this issue, one would think that dialogue on confidentiality would lean heavily towards protection. However, recent dialogue on confidentiality in electronic communications has not.

In its analysis, Ethics Opinion 99413 focuses on comparisons of other mediums of communication. These comparisons help draw the conclusion that the Internet "affords a reasonable expectation of privacy from a technological and legal standpoint." I would argue that the Internet does not afford this expectation and will make a similar comparison, but from a different angle to demonstrate this point.

ESTABLISHING RISK

"The Committee believes that e-mail communications, including those sent unencrypted over the Internet, pose no greater risk of interception or disclosure than other modes of communication commonly relied upon as having a reasonable expectation of privacy." American Bar Association, Standing Committee On Ethics And Professional Responsibility, Formal Opinion No. 99413...