As email has become ubiquitous, lawyers have found themselves enmeshed in a number of new concerns regarding ethics and liability. This article reviews a few of the concerns lawyers must consider in their use of email.

Informal Use of Email

Dashing off an email can be too easy. Before email existed, a lawyer occasionally sent a letter he or she regretted. It is much easier do the same thing with email. Disciplinary cases and malpractice claims have been aggravated by spur of the moment, hotheaded responses by email. In some cases, lawyers have discussed client situations involving potential malpractice or ethical concerns by email. Courts have often ruled such emails to be discoverable, particularly if the email conversations were not between a designated in-house counsel and lawyers involved with the matter. Emails sent in the course of a law practice should be as carefully drafted and considered, just like more formal documents.

Email Confidentiality

In 1999, ABA Formal Opinion 99-413 suggested that lawyers did not need to encrypt email in most circumstances in order to reasonably rely on email for confidential communications with clients. The opinion generates a false sense of security about email. The ABA Opinion focuses on the security of email while in transit, but most confidentiality risks are related to retrieval, storage and infection of email. Given recent revelations about government monitoring of email, lawyers might consider encryption of the text of email itself in working with certain clients who may receive or retrieve email out of the country.