Today's Daily Development is a report prepared by Nancy Appleby, a New Mexico attorney and a Committee Chair in the ABA Section on Real Property, Probate and Trust Law. Nancy delivered this report as part of the "Hot Tips" program at the Council and Committee Chair Fall Meeting in Boston this weekend. I thought it merited greater circulation, and Nancy agreed to my sharing it with DIRT readers.
If you think this indicates that I'm running low on current cases, you are right. If you have a recent case that you think I might want to run as the Daily Development, please share. Just give me the cite and the probable relevance. I'll do the rest.
I. The Confidentiality Standard:
ABA Model Rule 1.6 and Model Code DR 4-101 establish a clear Duty to Keep Confidential Information Received From Client. Here is the language of the Model Rule:
"a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b). [Paragraph b contains exceptions not relevant here]
Neither the Rule nor the comments address the issue of the method by which the communication is made. But the more recent Restatement concerning legal ethics takes into account the new concern about "electronic eavesdropping:"
Lawyer must take "reasonable steps to secure [client confidences or secrets] against misuse or inappropriate disclosure," including steps necessary to assure that "the lawyer and the lawyer's associates or agents acquire, store, retrieve and transmit confidential information of the lawyer's clients under systems and controls that maintain confidentiality." Restatement of the Law Governing Lawyers, Section 111, Comment c (Tent. Draft No. 3, 1990).
Note that the above rules do not limit the confidentiality duty to items of privileged communication. Nevertheless, it might be useful to note that the privilege does not arise as to communications that are not made with the "expectation of confidentiality," United States vs. Lopez, 777 F.2d 543, 552 (10th Cir 1985). Cellular telephone conversations have been found to lack this "expectation of confidentiality." United States v. Smith, 978 F.2d 171, (5th Cir. 1992); Salmon v. State, No. A92A1000 (Sept. 29, 1992), (Ga. Ct. App).
State ethics opinions have held that the attorney's use of a cellular telphone may violate the attorney's duty to hold client communications confidential. Several of these opinions have recommended that the attorney may avoid liability by disclosing to the client the danger of loss of confidentiality or possibly by using a "scrambler device."
Colorado Bar Ethics Committee Opinion 90, November 14, 1992: lawyer using electronic communication devices such as cordless telephones, cellular phones, computer modems, electronic mail and fax machines must exercise "reasonable care to protect client confidences and secrets from inadvertent disclosure." Putting a "confidentiality notice" on a fax transmission may not be sufficient. Instead, lawyer must exercise reasonable care to insure that the correct facsimile number of the intended recipient and guarding against inadvertent transmission to the wrong party. Additionally, lawyer communicating by telephone answering machine, computer modem or electronic mail must take care to determine that the message has been left on the correct machine and that only the intended recipient has access to it.
Illinois State Bar Association, Committee on Professional Responsibility, Opinion No. 90-7, November 26, 1990: In addition to advising client as to the possible loss of confidentiality and attorney/client privilege, lawyer should never use a portable phone when discussing confidential client matters.
Iowa State Bar Association, Ethics Committee, Opinion No. 90-44, May 24, 1991.
New Hampshire Ethics Committee Opinion 94-5, March 22, 1994: lawyer should not use a cellular phone to discuss confidential information with clients, absent an informed client consent if there is a risk that conversations may be overheard.
Committee On Professional Advice and Judicial Ethics of the Association of the Bar of the City of New York, Formal Opinion 94-11, October 21, 1994: lawyers should consider using scrambling devices to deterrent interception, should warn clients of dangers of using portable telephones and should avoid discussing confidential matters on portable phones, cites cases and ethics opinions since 1993.
South Carolina Bar Ethics Advisory Committee, Opinion 94-27, January, 1995: lawyer wishing to establish an "electronic law office" on a network to provide legal information and advice to people across the country must consider and take steps to insure the communications via electronic media will remain privileged and confidential, absent an express waiver by client. Committee cautions that "without certainty that electronic lawyer-client communications remain confidential, representation of or communication with a client via electronic media may violate Rule 1.6, absent an expressed waiver by the client."
Washington State Bar Association, Ethics Committee, Opinion 91-1, undated: limited opinion to cordless telephones.
The New York opinion cited above is the most comprehensive and contains numerous citations that might be helpful.
Here are some other sources that might prove helpful:
* International Association of Defense Counsel, Defense Counsel Journal, July 1995, Volume 62, No. 3, p. 450
* 1995 American Lawyer Newspapers Group, Inc., Texas Lawyer, May 22, 1995 (discussing encryption)
* 1994 New York Law Publishing Company, New York Law Journal, November 25, 1994, Letter to the Editor at p. 2 (discussing a New York Bar Opinion 1994-11)
Comment: It might, of course, be possible to make a full disclosure of the danger of using cellular telephones in one's initial letter stating the terms of retention, assuming one uses such a letter. But what is a "full disclosure?" Can you anticipate in a preliminary disclosure all the instances in which the security of an electronic communication may be compromised?
Encryption, of course, is possible. But will this really give protection? It probably will protect against accidental interception of cellular messages, but anyone who is determined to intercept a cellular message likely will also have the appropriate "decoding" device to foil all but the most sophisticated (and expensive) encryptions.
Lawyers and businesspeople always are susceptible to accidental loss of confidentiality. Mail can be misdelivered or lost, briefcases stolen or misplaced, conversations overheard by unseen and unsuspected listeners, etc. The question is whether a cellular telephone call is an ordinary business communication as to which a lawyer should have ordinary responsibility, or whether it presents special risks.
For instance, a lawyer probably would be negligent if he or she discussed a client's business affairs in a crowded elevator and someone overheard it. The lawyer probably would not be negligent if the overheard discussion occurred in a locked room in the courthouse, even if someone in fact was listening through the door, or could hear the conversation through an open vent.
In most cases, cellular telephone calls are not intercepted or overheard. Are they more like a conversation in an elevator, or more like a conversation in a locked room with an open vent? The editor favors the "locked room" analogy. Such calls are part of modern business. Ordinary care should be taken, and special care with respect to highly confidential materials. Perhaps a lawyer should inform a client that the lawyer is on the cellular phone, assuming this is not known to the client, but to impose greater care on the lawyer than this is unrealistic and imposes a higher duty upon lawyers than clients should reasonably expect.