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In 1876, Alexander Graham Bell invented the “electrical speech machine,” a device we now refer to as the telephone. Although Bell imagined great uses for his invention, he could not have been aware that it would entirely transform the way the world interacts, communicates, and exchanges information. Today’s electronic devices offer unlimited communication freedom and reduce many business complexities. However, they also present new confidentiality risks that can be harmful to attorneys and their clients. To accommodate the latest communication tools, the rules of ethics and civil liability continue to evolve. In fact, in 2000, the American Bar Association Standing Committee on Ethics and Professional Responsibility concluded that the risk of unauthorized interception and disclosure of information exists in every medium. However, the ABA also said that a lawyer does not violate a client’s right to confidentiality by sending information via unencrypted e-mail. The conclusions drawn by the ABA do not diminish a lawyer’s obligation to consider the sensitivity of the information, the costs of its disclosure, and the relative security of each available communication medium�nor do they diminish the threat of a malpractice claim against an attorney. The key is to be knowledgeable about the risks and take appropriate measures to alleviate them. E-MAIL The introduction of e-mail changed many business practices by creating a convenient, flexible, and efficient way to engage with clients. However, recent corporate lawsuits with multimillion-dollar penalties concerning the contents of internal e-mails have taught us to become increasingly aware of the confidentiality risks of e-mail. There are many ways that law practices can be protected from hackers and the interception of e-mail messages. For starters, it is essential to implement an e-mail policy and use e-mail filtering and anti-virus software. Also, by including a disclaimer at the close of every e-mail warning that the content is confidential, a firm can be protected against the exposure of sensitive information. If the receiver breaches this confidentiality, he or she could be liable. The threat of viruses increases as companies rely more and more on e-mail communication, as evidenced by the recent MyDoom virus. If an attorney or client sends or forwards an e-mail that contains a virus, a firm can be sued. Apart from implementing a good virus checker that blocks viruses entering and exiting the firm via e-mail, attorneys should also include a disclaimer to warn that the e-mail may contain viruses and that the receiver is responsible for checking and deleting them. Precautions must also be taken when sending documents to adversaries as attachments. It is possible that the sender could be sending “metadata” — information embedded in the document reflecting changes made in earlier drafts. Metadata can also be included when information is deleted from the version that was intended for the eyes of opposing counsel. Law firms should consider obtaining software to remove metadata or to block its transfer. Finally, it is critical to pay close attention when forwarding e-mails — particularly messages that have been exchanged back and forth multiple times. It is often necessary to check the content of the entire e-mail to ensure that it is relevant and applicable to the new recipient. FAXES Second only to e-mail, a fax is the fastest and most convenient way to transfer content from a source to the recipient. To date, no authority has said that the use of fax machines to transmit attorney-client communications is a violation of the ethics rule of confidentiality. Yet there are serious disadvantages to using this communication medium for those interested in avoiding civil liability because the content is neither sent nor received in a sealed envelope marked “personal and confidential.” It is important to consider what is often involved in the routine transmission of a fax. If you are not personally faxing your own documents, the fax is touched by at least one other person on the sending end who can read it. And, once the fax has been transmitted to the receiver, there is no way to ensure that it lands directly in the hands of the person for whom it is intended. Typically, a centralized fax machine is used by multiple lawyers in a firm. Thus, faxed documents often arrive in a highly frequented spot, accessible to anyone in the vicinity of the machine. And, of course, there is always room for human error and the possibility that the document will be transmitted to the wrong recipient. When handling confidential or sensitive information, there are some simple ways to avoid civil liability and professional risks. First, evaluate if by using the fax you are serving a genuine need that could not be accomplished by regular mail, express mail, or messenger. Second, take reasonable precautions to maintain confidentiality. For example, use a cover sheet identifying the material beneath it as confidential. If you rely on others to transmit your faxes, explain to them the importance of maintaining client confidentiality. Direct all people who handle your faxes not to read faxed materials nor to leave them unattended in open areas. It is often appropriate to call the client immediately before sending a fax so that the client can be present on the receiving end when it arrives or otherwise ensure it will not fall into the wrong hands. Another good safeguard is to ask clients to verify receipt. The risk of unintentional disclosure when using a fax machine can be high on both the sending and receiving ends. If you believe the risk of inadvertent disclosure to be significant, it is best to explain this to your client, including the warning that attorney-client privilege may be lost. CELLULAR PHONES It’s hard for many of us to imagine functioning today without the convenience of a cellular phone. Lawyers and their clients have been relying on them since the early 1990s. Yet experts are divided as to whether users have a reasonable expectation of privacy in conversations made over cell phones. Regardless, it is important to refrain from discussing sensitive client matters while using a cell phone. It is also important to alert the other parties involved that you are using a cell phone and to make an effort to conduct discussions with clients in a private area. When using electronic means to communicate in confidence with clients or to transmit confidential messages regarding a client, consider using encryption software. It is also important to develop and maintain law office management practices that offer reasonable protection against inadvertent discovery or disclosure of electronically transmitted confidential messages. The lawyer must, of course, abide by the client’s wishes regarding the means of transmitting information. It is your job to make your client aware of the risks associated with the various communication channels. It’s also worth remembering that even though Bell’s invention completely revolutionized the way we communicate, there is no beating a private, face-to-face meeting for highly sensitive client conversations. W. Brian Ahern, a registered professional liability underwriter, is president of Ahern Insurance Brokerage in San Diego. He can be reached at (800) 282-9786 or at [email protected]. This article first appeared in American Lawyer Media newspaper The Recorder, which is published in San Francisco.

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