March 2012 | Earn one hour of MCLE Credit in Legal Ethics
By Wendy L. Patrick
March 2012
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The modern practice of law has moved online. Most lawyers in today’s world have made the transition from pen and legal pad, to word processing, to in some cases - a virtually paperless cyberspace law practice that includes the use of cloud computing, electronic discovery, and for many lawyers, an almost entirely electronically-based law practice. With the disappearance of physical client files and related materials, this article will examine what ethical rules can potentially apply within the contemporary world of the Green Law Office.
Communicating with Modern Clients
Client communication is a major area in which the advent of electronic communication has impacted the practice of law. It used to be a common complaint that lawyers were notoriously bad about returning client phone calls. In today’s world, the bar is even higher. Contemporary clients use email or text messaging to contact their lawyers, and an immediate response is expected. California Rule of Professional Conduct 3-500 governs a lawyer’s ethical duties in communicating with his or her clients.
Rule 3-500 requires a lawyer to “keep a client reasonably informed about significant developments relating to the employment or representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed.” The Discussion section to Rule 3-500 notes that while clients must be informed of significant developments, a lawyer will not be disciplined for failing to communicate insignificant or irrelevant information. The Discussion section references Cal. Bus. and Prof. Code section 6068(m) which states that one of the duties as an attorney is to respond to reasonable client status inquiries and “to keep clients reasonable informed of significant developments” regarding the subject matter of their legal employment. Lest anyone take a violation of Bus. and Prof. Code section 6068 lightly, Bus. and Prof. Code section 6103 states that violations of any of an attorneys duties as an attorney “constitute causes for disbarment or suspension.”
Ethical Opinions on Technology and Practicing Law
In addition to communication, corresponding electronically with clients raises a host of issues related to client confidentiality, privacy, duty of competence, and more. Guidance on many of these ethical issues can be found not only in the California State Bar Rules of Professional Conduct and the California Business and Professions Code, but also within ethics opinions from California and around the country.
Regarding looking to ethics opinions for guidance, California Rule of Professional Conduct 1-100 states that while they are not binding authority, California ethics committee opinions should be consulted by California lawyers “for guidance on proper professional conduct.” The rule also states that “Ethics opinions and rules and standards promulgated by other jurisdictions and bar associations may also be considered.”
California State Bar Formal Opinion 2010-179 addresses some of the ethical issues surrounding a lawyer’s use of technology in the practice of law. Lawyers are cautioned that the type of technology they use may implicate the potential issues they face, the kinds of precautions they use, as well as the type of consent they might seek to obtain from the client. The use of technology is a critical concern in modern legal practice given that many lawyers enjoy sitting at Starbucks or in airports using free public wifi internet access. The opinion advises practitioners to consider, before using any technology in particular, how secure the technology is, what steps can be taken to increase the security of the technology, potential sanctions for unauthorized interception of electronic data, the level of sensitivity of the information, how the client could be adversely impacted by inadvertent disclosure of private information, the presence or absence of exigent circumstances, and the wishes and instructions of the client. The opinion explains that these considerations are important in analyzing whether or not the lawyer violates his or her duty of confidentiality to the client, or the duty of competence.
Regarding methods of communicating with clients, several out of state ethics opinions have concluded that generally, a lawyer may communicate confidential information via unencrypted email. (See, e.g. New York State Bar Association Op. 820 (2008); ABA Formal Opinion No. 99-413). The ABA opinion finds email comparable privacy-wise to commercial mail, land-line telephone transmissions and fax communication, but cautions lawyers to consult with their clients regarding the preferred mode of sending highly sensitive information.
The fact that many lawyers rely almost exclusively on electronic communication does not detract from their responsibility to follow all other ethical rules. This is true whether they are communicating with colleagues, family and friends, or clients. In addition to the concerns about the attorney-client privilege, there are ethical opinions regarding the propriety of spying on the electronic documents of others. The New York State Bar Association Committee on Professional Ethics in Op. 749 (2001) concluded that lawyers may not use technology to surreptitiously trace and examine electronic documents, including email. Practitioners are cautioned, however, that different states have different rules regarding the propriety of viewing the embedded data in documents.
Use of Company Email
Lawyers should keep up to date on the latest cases interpreting the interplay between the use of private email accounts, the use of employer computers, and the attorney-client privilege. Different jurisdictions have come to different conclusions regarding the issue of whether or not emails typed on a company computer are entitled to confidentiality. In Holmes v. Petrovich Development Co. (2011) 191 Cal.App.4th 1047, a client sent emails to her attorney from her workplace computer using her workplace account complaining about being unlawfully treated by her boss. Her employment handbook notified her that all emails sent and received on company equipment were subject to company monitoring. The court held that her attorney-client communications were not privileged.
In affirming the judgment, the Court of Appeal rejected Ms. Holmes’s contention that her email exchanges with her attorney constituted “confidential communication between client and lawyer” transmitted “by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interests of the client in the consultation.” (Evid. Code §952.) So far as Holmes was aware, “the company computer was not a means by which to communicate in confidence any information to her attorney. The company’s computer use policy made this clear, and Holmes had no legitimate reason to believe otherwise, regardless of whether the company actually monitored employee e-mail. Thus, when, with knowledge of her employer’s computer monitoring policy, Holmes used a company computer to e-mail her attorney about an action against her boss, [the company’s namesake], Holmes in effect knowingly disclosed this information to a third party, the company and thus [its namesake], who certainly was not involved in furthering Holmes’s interests in her consultation with her attorney (§952) because [the company’s namesake] was the party she eventually sued.” (Id. at 1071.)“[T]he e-mails sent via company computer under the circumstances of this case were akin to consulting [Ms. Holmes’s] attorney in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints would be overheard by him.” (Id. at 1051.) It is not that Ms. Holmes waived the privilege; it is that the privilege never attached in the first place because of how she chose to communicate with her attorney. (Ethics Quarterly, 8.1.6 (April, 2011)).
In Stengart v. Loving Care Agency, Inc. (2010) 201 N.J. 300, the New Jersey Supreme Court ruled that a company policy of monitoring emails must yield to the protection provided by the attorney-client privilege. The court held that the plaintiff, who had filed an employment discrimination case against her employer, had a reasonable expectation of privacy in the emails she sent to her lawyer through her personal password protected Yahoo account, even though they were sent through the use of a company laptop. (Id. at 308) The trial court had ruled that the plaintiff waived the attorney client privilege by using a company computer to send the emails. The court also ruled that the attorneys for the company violated their state’s version of rule 4.4(b) (inadvertent disclosure) by failing to tell the plaintiff’s lawyers that they possessed her privileged emails before reading them. (Id. at 325-36).
The Green Law Office and the Duty of Competence
If you are practicing law in the new millennium, you should have a working knowledge of the legal and ethical rules that apply or could potentially apply to the facts and circumstances of your cases. Your duty of competence includes being able to perform legal representation with competence, bringing in other lawyers who can, or by acquiring the necessary learning and skill by the time you begin performing legal services. In order to comply with the duty of competence, lawyers are well advised to become familiar with contemporary modes of communication, particularly because in some jurisdictions, many aspects of a case are frequently done electronically, such as discovery and filing motions and other court documents. Arguably, a lawyer who is still using a pad of paper and a pencil may not be equipped to handle a case where the discovery is comprised of an enormous amount of electronic documents, the other parties in the case are all communicating electronically, or the subject of the representation involves anything related to the internet, websites, or technology.
California Rule of Professional Conduct 3-110, Failing to Act Competently, states in paragraph (A) that “A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence. “Competence” is described in subsection (B) as “to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.” Subsection (C) states that if the lawyer does not possess the learning and skill necessary when the representation was undertaken, he or she may still render competent representation by associating with or consulting another lawyer who does possess the requisite competence, or by acquiring the necessary learning and skill themselves before performing the legal services.
Duty of Confidentiality
California Evidence Code section 917(b) states that a privileged communication does not lose its privileged status “for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication.”
The duty of confidentiality is included within California Business and Professions Code section 6068, which enumerates the duties of an attorney. Bus. and Prof. Code section 6068(e)(1) states that one of these duties is “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” This code section is referenced in California Rule of Professional Conduct 3-100, Confidential Information of a Client, which states in paragraph (A): “A member shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) without the informed consent of the client, or as provided in paragraph (B) of this rule.” Note that even if the proposed set of professional rules that are pending before the California Supreme Court are accepted, bringing California more in line with the ABA Model Rules, California will retain the provisions of Bus. and Prof. Code section 6068(e) — which will result in California remaining unique in the heightened emphasis given to this particular duty.
Note that while California has not yet adopted some versions of the ABA Model Rules, when California does not have an ethical rule governing a specific issue, courts may look to the ABA for guidance, although they may not consider ABA Rules and Opinions as binding authority. Regarding ABA formal opinions, case law holds that while an ABA formal opinion “does not establish an obligatory standard of conduct imposed on California lawyers,” the ABA Model Rules may be considered as a “collateral source” where there is no direct ethical authority in California.[1]
ABA Model Rule of Professional Conduct 1.6 is similar to California Rule 3-100 in its initial paragraph, providing that “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).” The second paragraphs of both rule 3-100 and rule 1.6 specify the circumstances under which a lawyer may, but is not required to, reveal client confidential information relating to the threat or risk of future harm.
Regarding a lawyer’s duty of competence, Comment [16] to the rule explains that a lawyer must “act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.” Comment [17] explains, “A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.” Comment [18] adds that, when transmitting confidential client information, a lawyer must take “reasonable precautions to prevent the information from coming into the hands of unintended recipients.”
CONCLUSION
Electronic communication has facilitated the practice of law in many ways, and is a valuable mode of communication for the lawyer who is familiar with all of the applicable ethical rules. A working knowledge of the law and ethical rules governing the mechanics and limitations of online communication will allow you to interact in the virtual world of the Green Law Office effectively as well as ethically. Good luck!
*This article does not constitute legal advice. Please shepardize all case law before using.
ABOUT THE AUTHOR:
Wendy L. Patrick is Chair of the California State Bar Committee on Professional Responsibility and Conduct (COPRAC) and immediate past Chair of the San Diego County Bar Association Ethics Committee. She has her own ethics column in the San Diego Daily Transcript and writes and lectures on ethics nationally and internationally. Ms. Patrick is also a San Diego County Deputy District Attorney in the Sex Crimes and Stalking Division named by her peers as one of the 2010 Top Ten criminal attorneys in San Diego by the San Diego Daily Transcript and a 2010 Superlawyer.
Ms. Patrick can be reached at wendy.patrick@sdcda.org or at (619) 531-3260
[1] State Compensation Insurance Fund v. WPS Inc. (State Fund) (1999) 70 Cal.App.4th 644, 656.
