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ABA revises recent Formal Opinion 477, which addresses lawyer ethics issues when transmitting confidential information over the internet

Hello everyone and welcome to this Ethics Alert update which will discuss Revised ABA Formal Opinion 477, which was issued on May 22, 2017. The opinions addresses a lawyer’s ethical responsibilities to secure client confidential information when transmitting the information over the internet.  According to the ABA, Formal Opinion 477 was revised to clarify that the opinion does not alter Formal Ethics Opinion 11-459 and to note that the change in Model Rule 1.6(c) supported 11-459. There are no substantive changes to the opinion.  The revised Formal Opinion is here: Revised ABA Formal Opinion 477.

ABA Formal Opinion 477 states:  “In Formal Opinion 99-413 this Committee addressed a lawyer’s confidentiality obligations for e-mail communications with clients.  While the basic obligations of confidentiality remain applicable today, the role and risks of technology in the practice of law have evolved since 1999 prompting the need to update Opinion 99-413.  Formal Opinion 99-413 concluded: ‘Lawyers have a reasonable expectation of privacy in communications made by all forms of e-mail, including unencrypted e-mail sent on the Internet, despite some risk of interception and disclosure. It therefore follows that its use is consistent with the duty under Rule 1.6 to use reasonable means to maintain the confidentiality of information relating to a client’s representation.’ (footnote omitted).”

“Unlike 1999 where multiple methods of communication were prevalent, today, many lawyers primarily use electronic means to communicate and exchange documents with clients, other lawyers, and even with other persons who are assisting a lawyer in delivering legal services to clients.” (emphasis supplied).`

The opinion concludes: “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.”  (emphasis supplied).

Bottom line:  The now revised ABA formal opinion addresses the important ethical issues related to securing client communications when transmitting confidential information over the internet under the Model Rules and is for guidance only and is not binding; however, the analysis would be applicable in most, if not all jurisdictions, including Florida.  Lawyers should consult the rules and ethics opinions of their jurisdiction for further guidance.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19, N., Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

[email protected]

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