THE USE OF cellular telephones has become commonplace among attorneys. Cellular technology has enhanced lawyer productivity during travel time and enabled lawyers and clients to cut down on "phone tag." Since its advent, the suitability of cellular technology for communication of client confidences has been under scrutiny by the profession.

In 1992, the New Hampshire Bar Association’s Ethics Committee issued Advisory Opinion 1991-92/6. In that opinion, the committee concluded that, in light of the state of cellular technology at that time, a lawyer could not discuss client confidences by cell phone without first disclosing to the client that the communication might not be secure and explaining the possible implications of a breach of confidentiality.

The opinion was premised upon the committee’s understanding that it was then possible for a third party to intercept cell phone signals with a scanner, through "piracy" by an employee of a cellular provider, or through inadvertent switching of radio bands. Given these possibilities, the participants in the call could have no reasonable expectation of "absolute privacy." This article supersedes Advisory Opinion 1991-92/6.

The attorney-client privilege is a rule of evidence that gives the client the right to prevent the disclosure of "confidential communications" made in the context of "the rendition of professional legal services to the client." [N.H. R. Evid. 502(b).] By contrast, a lawyer’s duty to preserve client confidences arises under the Rules of Professional Conduct. [N.H. R. Prof. Cond. 1.6(a).] The ethical rule encompasses not only those communications that fall within the attorney-client privilege, but also "all information relating to the representation, whatever its source." [Id., ABA Model Code Comments.]

For purposes of applying the attorney-client privilege, a communication is "confidential" only if it is "not intended to be disclosed to third persons . . . ." [N.H. R. Evid. 502(a)(5).] "Generally, the presence of an ‘extraneous’ third party during a privileged conversation operates to destroy the privilege." [State v. Melvin, 132 N.H. 308 (1989).] When the third party’s presence during (or interception of) such a conversation is unknown to the participants, however, there will be no waiver "if the client or other disclosing person took precautions reasonable in the circumstances to guard against such disclosure [to third parties]." [Restatement of the Law Governing Lawyers §79, Comment h.] Obviously, the medium through which the communication is made is a substantial factor in the determination of whether the "disclosing person" took reasonable precautions against inadvertent disclosure.

The bar associations of other jurisdictions have rendered a range of opinions on the ethical implications of the use of cell phones to communicate or discuss client confidences. Ethics committees in four other states have adopted the same position as did the NHBA Ethics Committee. [Ill. St. B.A. Adv. Op. 90-07 (1990); Iowa S. Ct. Bd. of Prof. Ethics and Cond. Op. No. 90-44 (1991); N.Y.C.B.A. Comm. on Prof. and Judicial Ethics Op. No. 1994-11 (1994); Mass. B.A. Op. No. 94-5.] Like the New Hampshire opinion, these opinions are premised upon the notion that cellular transmissions are easily intercepted and that, as a result, cell phone users cannot have a reasonable expectation that their communications are private.

Only one state’s committee has concluded that – despite the risk of interception of communication over cell phones – the "mere use" of a cell phone to communicate with a client does not constitute "an ethical breach." Even so, the committee cautioned against discussing "sensitive matters" by cell phone. [Ariz. Comm. R. Prof. Cond. Op. No. 95-11 (1995).] The Minnesota committee, by contrast, opined that a lawyer may, consistent with Rule 1.6, discuss client confidences by cell phone while using a digital signal but must disclose the risks of interception to the client while using an analog signal. [Minn. Lawyers Prof. Resp. Bd. Op. No. 19 (1999).]

The remaining jurisdictions addressing the issue have rejected a bright-line rule in favor of a more closely tailored approach. These committees would require a lawyer to weigh the security of a mode of communication against the sensitivity of the subject matter in discharging his duty under Rule 1.6. [Colo. St. B.A. Ethics Comm. Op. No. 90 (1992) (reasonable care standard); N.C. St. Bar, R.P.C. 215 (1995) (same); Del. St. B.A. Comm. Prof. Ethics Op. No. 2001-2 (2001) (given development of digital technology and protections afforded by federal law, lawyer’s use of cell phone consistent with Rule 1.6 "absent extraordinary circumstances").]

The Standing Committee on Ethics and Professional Responsibility of the American Bar Association touched upon this issue in 1999 in Formal Opinion (F.O.) 99-413. Although the subject matter of the opinion was the confidentiality of unencrypted e-mail, it also surveyed the integrity of the other means of communication commonly used by attorneys and their clients.

The ABA opinion observed that since 1986 federal law has afforded cell phone users the same protection against interception as that of landline telephone users. [F.O. 99-413 at B §3.] (Landline telephones are widely held to be a secure means of communication under ordinary circumstances. Id. at B §2.) The committee also noted that Congress has prohibited the manufacture or possession of scanners capable of intercepting cellular calls. [Id. at B §3, citing 18 U.S.C. §2512.] The advent of digital cellular technology, moreover, provides a substantial improvement over analog technology in terms of protection against interception. (Id.)

The ABA committee expressed no opinion concerning the compatibility of cell phone use with the lawyer’s duty to preserve client confidences. (Id.) The committee’s observations, however, suggest that many of the assumptions underlying the 1992 opinion of the NHBA Ethics Committee have been overtaken by changes in both the law and technology. Still, the NHBA Ethics Committee is not yet prepared to conclude that cell phones are sufficiently secure that their use is always consistent with the obligations imposed by N.H. R. Prof. Cond. 1.6(a).

The NHBA Ethics Committee has concluded that to comply with Rule 1.6(a) a lawyer must select a means of communication that is sufficiently secure, given the sensitivity of the subject matter of the communication, to prevent its interception. Within this general framework, the committee offers the following observations and guidance:

The Electronic Communications Privacy Act (18 U.S.C. §§2510-2522) (ECPA) criminalizes most intentional interceptions of cellular transmissions. [18 U.S.C. §2511.] Unlawfully intercepted communications are generally inadmissible in evidence. [18 U.S.C. §2515.]These protections have led some to conclude that lawyers and clients have a reasonable expectation of privacy in conversations over cell phones. [See, e.g., Del. St. B.A. Comm. Prof. Ethics Op. No. 2001-2 (1002) (federal law offers "vast (if not full) protection" for cellular communications); M.W. Pearlstein & J.D. Twombly, Cell Phones, Email and Confidential Communications: Protecting Your Client’s Confidences, Boston B.J. (Jan./Feb. 2002).]

While it may be that federal law will prevent a waiver of the attorney-client privilege when the communication at issue is intentionally intercepted, it does not follow that the law creates a safe harbor in terms of a lawyer’s compliance with Rule 1.6(a). The duty to preserve client confidences protects a wider range of client interests than does the attorney-client privilege. A client’s interests can be seriously harmed through public disclosure of a confidential communication. It is likely to be of little solace to such a client that the publicly disclosed confidence remains privileged and therefore inadmissible as evidence under ECPA.

The protection against intentional interception is also subject to a number of statutory exceptions. [18 U.S.C. §2511(a)-(i).] State and federal law enforcement officials, moreover, may intercept a communication that may provide evidence of one or more enumerated offenses, provided the interception receives judicial approval. [18 U.S.C. §2516.] A lawyer cannot assume, then, that ECPA will always prevent the interception and disclosure or use of client confidences.

A lawyer’s use of a cell phone to discuss a client’s case or business while in an analog service area still poses a substantial risk of interception of confidential information. A lawyer must assume that any conversation under these circumstances is likely to be intercepted and refrain from any discussion that the lawyer would avoid in a crowded public setting. The committee understands that a cell phone employing a digital signal offers far greater security than does analog technology. Before contracting with a wireless provider, however, a lawyer should inquire into the extent to which the provider’s network is digital and whether a particular handset is capable of using an analog signal. So-called "tri-mode" phones take advantage of one of the three available types of signal within a cell and may switch between analog and digital (PCS or CDMA) signals without the user’s knowledge.

Because of the enhanced security offered by digital technology, the committee sees no reason to distinguish between digital cell phones and landline phones for purposes of compliance with Rule 1.6(a). That being said, all lawyers – and criminal defense counsel in particular – must remain mindful that law enforcement and intelligence-gathering agencies are able to intercept digital cell phone transmissions quite readily. Indeed, interception systems are marketed to domestic and foreign authorities on the Internet. As a result, when the subject of a lawyer’s conversation is such that it is likely to attract the attention of law enforcement or intelligence services the lawyer should avoid altogether the use of any means of communication that can be intercepted.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer