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The following discussion thread excerpt is from an ongoing law.com online seminar, “Ethics and the Internet,” moderated by Professor Roy Simon of Hofstra University School of Law. For more information on this program and other law.com seminar offerings please visit www.law.com/seminars. Margie Loeser, Maypother & Maypother, Louisville, Ky. Having skimmed the seminar material, I think that I have some understanding of how the attorney-client relationship may be created over the Internet; but the more interesting question is whether or not, and to what extent, attorney-client privilege is waived by the creation of the relationship on a public board? I don’t believe that most lay people understand how public a message board is. The Internet is still relatively new for many people; they could have a mistaken belief that posting their situation on an attorney’s board is the same as emailing that attorney. [This] raises another interesting question: With so many people using the Internet from their office, and many businesses actually reading the individual’s mail, does corresponding with an attorney by e-mail create a waiver problem? Professor Mary Daly, Fordham University School of Law, New York, N.Y. Your comment is right on target. The creation of an attorney-client relationship can in large measure be dependent on the “reasonable expectation” of the would-be client. A “cyberspace lawyer” who operates a bulletin board or a chat room has an ethical obligation to inform the users of the bulletin board or chat room that their comments are most probably not protected by the attorney-client privilege and can be read by third parties. I am an enthusiastic supporter of using the Web to provide legal information to individuals who cannot afford to retain a lawyer or who just need information of a legal nature. I also believe, however, that cyberspace lawyers must take great care to protect the interests of unsophisticated clients who may not understand the risks of chatting online or posting comments on a bulletin board maintained by a law firm. Professor Catherine Lanctot, Villanova University School of Law, Villanova , Pa.: I agree with Mary about the risks of creating attorney-client relationships online without full disclosure of the risks involved. On the question of confidentiality, I’d like to explore further this issue of communicating with clients through e-mail. A few thoughts come to mind: � Do lawyers draw distinctions between using e-mail to communicate with clients about deadlines, developments in their case, etc. (which, of course, is confidential under 1.6) and using it to obtain more sensitive information (e.g. the client’s version of events, or discussions about whether or not to pursue a particular strategy)? Should they? � Are there benefits as well as risks to e-mail communications? Among the benefits are access 24 hours a day, no phone tag, permanent record of what was said to client, etc. Among the risks are inadvertent breaches of confidentiality and the possibility that the permanent record of these communications could later come back to haunt lawyer/client. � What should the bar’s regulatory posture be with respect to e-mail? Encryption of everything seems like overkill — unlike the popular perception, e-mail is NOT like a postcard, and the fact that someone can wiretap your phone doesn’t mean you shouldn’t use it to communicate with your client. Professor Roy Simon, Hofstra University School of Law, Hempstead, N.Y.: All of these are excellent points. A few observations: 1. Some states have passed statutes protecting e-mail communications. For example, in 1998 New York enacted a new CPLR statute, Section 4548, which provides as follows: No communication privileged under this article shall lose its privileged character for the sole reason that it is communicated by electronic means or because persons necessary for the delivery or facilitation of such electronic communication may have access to the content of the communication. I think the New York statute expresses the law elsewhere, whether codified or not. 2. Some law firms seek to protect privilege and confidentiality for e- mail by using elaborate disclaimers. King & Spalding, for example, puts the following disclaimer on its Web site: We would be pleased to communicate with you by e-mail. However, if you communicate with us through this World Wide Web site or otherwise in connection with a matter for which we do not already represent you, your communication may not be treated as privileged or confidential. If you communicate with us by e-mail in connection with a matter for which we already represent you, please remember that Internet e-mail is not secure and you should avoid sending sensitive or confidential Internet e-mail messages unless they are adequately encrypted. For other examples of Web site disclaimers, visit the Web site maintained by the Computer Law Section of the State Bar of Georgia at http://www.computerbar.org/netethics (click on “Sample Disclaimers”). Jeffrey Kuester, Thomas, Kayden, Horstemeyer & Risley, Atlanta , Ga.: Oddly enough, while the Computer Law Section of the State Bar of Georgia — which I chaired last year — requested the State Bar to issue a formal advisory opinion clarifying this issue and essentially adopting the Illinois position that only matters you would not discuss on a wireless phone are off limits, the State Bar would not even admit there was much of a real problem here. Instead, they seemed to adopt the position that since interception is illegal, it is OK for attorneys to use Internet e-mail. Professor Roy Simon, Hofstra University School of Law, Hempstead, N.Y.: Theft is illegal, too, but we don’t allow attorneys to keep escrow funds sitting on a table in the reception room — or even in banks that don’t meet certain criteria for safety, etc. I think you are right that there is a problem, and attorneys have to take reasonable steps (not perfect steps) to guard against bad guys. You sound like you have taken some of those steps (veri.sign, digital phone, etc.) — probably more than you are required to do. And I think the T.J. Hooper reasoning is sound here. The T.J. Hooper, 60 f.2d 737 (2nd Cir. 1932). If a technology is readily available to guard against interception and it’s easy to use, then the whole profession may be negligent if it doesn’t use the technology. (In T.J. Hooper, the tugboat didn’t have a weather radio, so it didn’t tie up properly before the storm, and it crashed into the dock. The defense was, “Most boats don’t have weather radios.” Learned Hand said the whole tugboat industry was negligent if that was the case.) Jonathan Willens, Jonathan A. Willens, New York, N.Y.: The New York statute seems to protect N.Y. lawyers from any malpractice or ethical charges based on using e-mail for attorney-client correspondence. Do you agree? Then the remaining concern is to make sure the client understands the risks of disclosure and to reach an agreement on using e-mail, telephone and face-to-face conversations for privileged communications. Professor Roy Simon, Hofstra University School of Law, Hempstead, N.Y.: I’m very glad you are raising this because an important part of this is the understanding with a client. Some clients allow their secretaries to read their e-mail, or leave their e-mail on all the time so anyone who is in the office while the client is out can read it, etc. These clients may not want e-mail on sensitive topics, just like they wouldn’t want sensitive voice mail messages on their home phones (or maybe even their office phones). An advance agreement with the client about what kinds of communications will come by phone, fax, e-mail, and in person seems very prudent. Can some of the seminar participants describe how they approach this subject with clients, and what clients seem to prefer? Joseph Haggerty, Aventis, Paramus, N.J.: I only allow my secretary access to e-mails and make sure that my e- mail is not accessible to others when I am not around my office. Anyone who does not take steps to prevent others from reading sensitive information is taking a significant risk, both from an outside counsel and an in-house counsel perspective. I always let outside counsel know that my secretary has access to my e-mail and other communications unless counsel specifically marks the envelope as “Confidential.” As a client, the issue is privilege, as well as the fact that sensitive business/personnel topics may be discussed. I still prefer to discuss highly sensitive matters by telephone or letter, although the time saved by use of e-mail is significant and becoming more crucial. Professor Mary Daly, Fordham University School of Law, New York, N.Y.: Much of the conversation to date reminds me of an outline of items I would want to think about and research if I were asked to be an expert in a malpractice action in which the alleged wrongful conduct related to the negligent handling of e-mail or the negligent use of the Internet to communicate with clients about confidential information. Does anyone know if there are such cases? Does ALAS or any other insurer have a protocol that they give to their insureds on e-mail and Internet communications with client? If they do, can I as an expert rely on the ALAS documents as some evidence of a community standard of care? Scott Killingsworth, Powell, Goldstein, Frazer & Murphy, Atlanta, Ga.: Ethics aside, as a practical matter it’s a very good idea to know who has access to your client’s e-mail and voice mail, or at least to assume that secretaries or other colleagues may have access. It is certainly the norm for secretaries to have access to paper mail unless marked “personal,” but I think people often assume (and are more often than not correct) that they do not have access to e-mail or voicemail. When this assumption is wrong the results can be embarrassing . … People often call to say sensitive things that they would not put in a letter and might not put in an e-mail: a complaint about a colleague of the recipient (maybe even the secretary), venting about something else, a request for a personal favor … and then leave this on voicemail without considering that others than the intended recipient may hear it. Professor Roy Simon, Hofstra University School of Law, Hempstead, N.Y.: Scott raises the crucial point of who has the password to e-mail (and voicemail). It seems to me that we need to ask our clients not only, “Do you like to communicate by email?” but also “Can anyone else open your messages?” If anyone else can open them, we need to ask the follow-up question: “Is there anything you don’t want me to send by e-mail?” Jeffrey Kuester, Thomas, Kayden, Horstemeyer & Risley, Atlanta , Ga.: Could such conversations themselves with clients actually help destroy the privilege? My point is that a reasonable expectation of privacy is one of the elements of the privilege existing, so if the attorney destroys that expectation, is there a greater chance that the privilege does not exist or is waived when the client engages in the then more knowingly insecure communication?

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