ABA Says Clients Must Be Warned About Email Security Issues

According to a recent ethics opinion issued by the American Bar Association, lawyers have a duty to warn clients about security risks inherent in using an employer’s device, such as a work computer or email account, to correspond with their lawyers.

“Clients may not be afforded a ‘reasonable expectation of privacy’ when they use an employer’s computer to send e-mails to their attorneys or receive e-mails from their attorneys,” the opinion states. “Employers often have policies reserving a right of access to employees’ e-mail correspondence via the employer’s e-mail account, computers or other devices, such as smartphones and tablet devices, from which their employees correspond.”

ABA Model Rule of Professional Conduct 1.6(a) explains that a lawyer must not reveal any information relating to representation of the client without
consent, and must competently protect the confidentiality of the client. The ABA Standing Committee on Ethics and Professional Responsibility recognizes that this responsibility includes warning clients who may be unaware of the potential risks to confidential communications transmitted via email.