Email Ethics for Attorneys
Email has become a pervasive, if not essential, part of practicing law. You could theoretically practice law without personally using email, but you would be setting yourself apart as a tortoise in the age of jackrabbits, and missing out on a tool that can streamline your communications and serve as an effective marketing medium for new and existing clients. In addition, failure to understand and to be able to explain to your clients the risks associated with email may be a violation of the ethical requirement for technical proficiency. Comment 8, of Rule 1.1 of the ABA’s Model Rules of Professional Responsibility, provides that,
“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”
Initially, lawyers were not even allowed to communicate with clients via unencrypted email without express consent from the client. However, by the end of the 1990’s, email use had become so common, that the requirement for express consent was eventually dropped. In 1999 ,the ABA’s Standing Committee on Ethics and Professional Responsibility issued ABA Formal Opinion No. 99-413. The Committee concluded that client consent regarding the use of email was unnecessary. In the opinion, the Committee stated that:
“Although earlier state bar ethics opinions on the use of Internet e-mail tended to find a violation of the state analogues of Rule 1.6 because of the susceptibility to interception by unauthorized persons and, therefore, required express client consent to the use of e-mail, more recent opinions reflecting lawyers’ greater understanding of the technology involved approve the use of unencrypted Internet e-mail without express client consent.”
Unfortunately, the implications of using email continued to evolve and not for the better, in terms of security. As a result, the ABA revisited the issue and in 2011, in ABA Formal Opinion 11-459, the Committee stated that lawyers must warn clients about the risks of sending confidential communications when using email. The opinion stated,
“Whenever a lawyer communicates with a client by e-mail, the lawyer must first consider whether, given the client’s situation, there is a significant risk that third parties will have access to the communications. If so, the lawyer must take reasonable care to protect the confidentiality of the communications by giving appropriately tailored advice to the client.”
Although this may seem like just another unnecessary burden on lawyers, you may intuitively have been addressing these risks already. When you speak to a client on the phone or you address a letter to them at a mailing address they provided, you have a reasonable basis to conclude that your communications are confidential. On the other hand, in the case of a family court matter where the opposing parties are often living together, you probably inquire as to whether or not your client believes communications to them via email are secure.
However, do you ask them whether their email is secure if they are using a work email address? Many employers reserve the right to inspect employee emails. Do you know what their employer’s policy is regarding personal email being accessed on company computers? This is something you should clarify with your client before you start exchanging confidential information in your emails with them. It is also something you should verify in writing so you can prove that you have cautioned them appropriately.
One of the problems that has always existed in the practice of law, but seems to have been magnified in the age of the Internet search and omnipresent smart phones, is that even when you have turned a lead into a client, they may perceive you as an attorney only for the type of service your previously provided to them and not consider you for other types of legal services. In other words, if you did their bankruptcy they may not necessarily know that you also do personal injury cases and may seek another attorney when they are injured in an accident.
This can be at least partially overcome by using your regular emails to your clients to market your other services by including your practice areas in your signature section. Every time they receive an email from you they will be reminded that you practice in these other areas. You can also implement a formal email marketing program using services such as MailChimp to market to leads and existing clients. If you are receiving leads from your own website or a lead generating service, you more than likely are receiving the lead’s email address. If you fail to convert the lead into a client at the time of the contact, that doesn’t mean that you can’t convert that lead into a client in the future with periodic emails to the lead. This is especially true in practice areas such as divorce and bankruptcy where the lead may consider their options for months and even years before they decide to hire an attorney.
If you maintain contact with them periodically by sending them emails reminding them that you remain happy to assist them with their legal needs, including legal needs other than the one they first contacted you for, you are more likely to be the first attorney they think of if and when they decide to retain an attorney. The prospective client would be less likely to start a new online search for an attorney if they have been adequately informed and reminded of your practice areas.
If your state bar requires that direct solicitations to potential clients be labeled “advertising” does that apply to email? You probably don’t have to use that label if the recipient is an existing client or a potential client who opted to receive marketing emails from you, but there is a lot of ambiguity in regard to applying the old rules to the new marketing vehicles. It might be prudent to use the “advertising” label or make in inquiry to your local disciplinary counsel for an advisory opinion. It is also important to remember to include a specialty disclaimer if your state requires you to do so and you are listing your practice areas in your signature block.
In addition to our own rules of ethics, there are other rules pertaining to email marketing which we must follow. For instance, we must follow the CAN-Spam Act which, among other things, requires that the recipient must first agree to receive future marketing emails from you and which requires you to provides a means for them to opt out of receiving the emails in the future. Services such as MailChimp have these safeguards built-in so it is advisable to use those services.
There is a way to get around the potential security and confidentiality problems of email without entirely losing its speed and convenience. Many law office management programs provide for Client Portals, where you and your clients may message each other and exchange documents on a secure server. Both you and your clients must login to the portal to use the service and everything is usually done at bank level security. Among the benefits of using such a client portal is that your law office management program will also manage and incorporate your emails into its system which will facilitate organization of the communications and associate the emails with the particular client and matter as opposed to leaving them in an unorganized mess in your email program. Another benefit is that your client communication, if done via client portal, will be easier to capture for time and billing purposes.
So, what’s the take away? Use email if you wish, almost everybody does. However, it is incumbent on you to evaluate the risks and to discuss them with your client. If your law management software provides a secure client portal, consider using it, if not for all your client communications, at least for the ones most in need of security and confidentiality.
Carl P. DeLuca, Esq
April 25, 2017