Ethics Corner Article
New Hampshire Bar News – March 16, 2012
Dear Ethics Committee: I represent an individual, Joan Smith, who works for NH Widgets Co. Joan called me after she was injured at work and her worker’s compensation claim was denied. After our initial discussion, I agreed to represent her in her appeal to the Compensation Appeals Board. Her injury does not prevent her from working. Shortly after I asked her to give me a detailed, written description of the events leading up to her injury, she sent me an email with an attachment. I noticed that the email address was email@example.com. Should I be concerned about this from an ethics perspective?
Yes, you should be concerned, because you have an ethical obligation to address any risk that your client’s employer will have access to any emails that she sends or receives through her workplace computer.
The problem of unintended disclosure of privileged or confidential communications is ever present with our increased use of email, the Internet, texting, social media and other electronic media and devices. Lawyers must take reasonable precautions to protect information “related to representation of a client,” as disclosure without client consent is prohibited by Rule 1.6 of the New Hampshire Rules of Professional Conduct (Rules). Employment-related disputes are especially problematic because an employer’s internal policy may allow for access to employees’ workplace emails.
The American Bar Association (ABA) recently issued a formal opinion on this subject, raising some key issues for lawyers to consider when communicating with clients. See ABA Formal Opinion 11-459 (August 4, 2011). It concluded that lawyers are obligated to ascertain whether there is a significant risk that business email will be used for personal communications and, if so, are obligated to instruct their clients to avoid using workplace systems to communicate substantive information. The ABA also concluded that lawyers must assume that an employer’s internal policy allows for access to employee emails. The ABA went further to conclude that “if the lawyer becomes aware that a client is receiving personal email on a workplace computer or other device owned or controlled by the employer, then a duty arises to caution the client not to do so, and if that caution is not heeded, to cease sending messages even to personal email addresses.” Id., 3, nt. 7. The Ethics Committee does not agree with the ABA Opinion’s statement that termination of email communications is required. If the client has been fully advised of the risks associated with continued use of workplace devices or email, including the potential waiver of privilege and confidentiality protections, then the client “may give informed consent to the use of a means of communication that would otherwise be prohibited” by Rule 1.6. 2004 ABA Model Code Rule 1.6, Comment 17. The ABA did not address the substantive law question of whether an electronic communication through a workplace device to an attorney from an employee can be protected by attorney-client privilege.
In your case, providing competent representation under Rule 1.1 and protecting against disclosure of client confidences under Rule 1.6 appears to warrant immediately cautioning your client against using her workplace computer to converse with you on the workman’s compensation matter. If she continues to use her workplace computer, email system or other employer devices to communicate with you about the case, you may want to consider further discussion with your client about the risks involved and the possibility of abandoning email altogether. Keep in mind that a yahoo.com or gmail.com email address does not guarantee confidentiality if your client has accessed her personal email through their employer’s devices or email system.
The Ethics Committee provides general guidance on the NH Rules of Professional Conduct with regard to a lawyer’s own prospective conduct. New Hampshire lawyers may contact the Ethics Committee for confidential and informal guidance by emailing Robin E. Knippers. Brief ethics commentaries based upon member inquiries and suggestions will be published monthly in the NH Bar News.