Today, e-mail is almost universally part of legal practice. With the growth of mobile devices,messages are sent and received 24/7 throughout the world. Included within many of these messages, of course, is information that attorneys are ethically obligated to keep confidential, where disclosure might have serious negative consequences for the client.
Because the vast majority of messages are not encrypted by senders before being transmitted, this raises the critical question of whether the attorney-client privilege covers unencrypted e-mail. Since 1999, the answer has been a fairly clear yes. In its Formal Opinion 99-413, dated March 10, 1999, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility stated:
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