The Journal of The DuPage County Bar Association

Back Issues > Vol. 23 (2010-11)

Confidentiality and E-mail Communication: A Need for Clarification in Illinois’ Ethics Rules
by Jessica Fiocchi

There is a point in the lives of most people in which they will have contact with an attorney. Whether this contact takes place during the purchase of your first home, preparing your will, or some other important situation, a concern is always choosing a lawyer that will adequately represent you and respect your desire for confidentiality. Confidentiality in the form of attorney-client privilege is one of the most heavily protected aspects of the legal profession, as is obvious with a glance at the Rules of Professional Responsibility. In conflicts between the confidentiality of the client and the interest the court system has in relevant evidence, confidentiality tips the scales, subject only to a few specific exceptions. Even in cases in which the attorney is aware that his client is guilty of a crime for which another person has been incarcerated, the attorney is not allowed, in most jurisdictions, to disclose this information to anyone without the permission of his client.

With the increase in the use of the internet in recent years, confidentiality of information has faced new challenges. Electronic communication (especially e-mail) has become more frequently relied upon, because now millions of people use e-mail accounts. In fact, today, over two million e-mails are sent every second. Along with this new way of sharing information, there has been more concern in how this information can be accessed by third parties and privilege can be inadvertently waived. For example, internet service providers have access to information sent through them via the internet in order that said e-mails reach their intended recipients. Courts often subpoena internet records, including e-mails, directly from the internet service providers, rather than from the home computers of the parties involved in litigation. This raises fewer fourth amendment concerns as it does not bring in belongings from the parties’ homes, and allows for freer access to such information by the courts.

Illinois’ Stance on Electronic Communication. In Illinois, the confidentiality rule of professional responsibility does not deal specifically with electronic communication. Comment 17 for Rule 1.6 in the Illinois Rules of Professional Responsibility discusses the actions that should be taken on the part of an attorney to preserve confidentiality: "…the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions." The main question, then, comes down to whether or not using e-mail for attorney-client communication offers a "reasonable expectation of privacy."

Similar considerations in past decades have included the concern of the Illinois State Bar Association [hereinafter ISBA] about the use of "cordless or other mobile telephones" that might be intercepted when discussing confidential matters. The opinion in which the ISBA suggested advising the client of the risk of the loss of confidentiality for communications on these telephones was later withdrawn, suggesting that as the use of these devices increased, faith in their use for confidential information increased. Internet communication has developed differently from telephone lines, with the use of internet service providers who transfer the data from one person’s computer to the intended recipient’s computer, giving them access to the information being sent. This variation may lead to a different development then that for cordless and mobile telephones. If more third parties have potential to access the information, the confidentiality of information may be compromised.

For example, a 2007 case from Illinois, Muro v. Target Corp., discussed the concerns that e-mail communication brings about. The case discussed the fact that e-mail chains may take place over several different days, that the different people being included on various e-mails within the chain may change from message to message, and that some e-mails within the chain may involve legal advice or a request for such advice while some other messages may not include such information. While these concerns did not lead the court to state that e-mail could not be used for the purpose of sharing privileged communication, it did say that for discovery purposes, the e-mails were not required to be separated out, which may lead to opposing counsel having access to some privileged information.

Such issues may lead an attorney to think of comment 17 from Rule 1.6, stating that "special circumstances…may warrant special precautions." According to the ISBA opinion on electronic communication, some states have come up with such precautions and required things like encryption of e-mail messages or client consent for "non-secure" communication. While the ISBA noted the decisions of these other states, Illinois did not follow the same route. Because of a supposed "reasonable expectation of privacy" that is the same as an ordinary telephone call, and because of the fact that e-mail interception is illegal under the Electronic Communications Privacy Act [hereinafter ECPA], the ISBA decided to advise that e-mail communication would not lose its status as privileged information. This goes along with comment 17 to Illinois Rule of Professional Responsibility 1.6, which discusses what should be considered in determining the expectation of confidentiality of communication, and includes "the extent to which the privacy of the communication is protected by law…" However, with the passage of the Patriot Act in 2001, the ability of the U.S. government to get around the ECPA weakens this argument, making the protection by law of electronic communication less powerful and more likely to be circumvented in some situations.

The Differing Opinions of Other States. In some recent decisions, other states have had differing opinions on whether or not communicating confidential information through e-mail waives the attorney-client privilege. For example, in the Eleventh Circuit case of Rehberg v. Paulk, the court stressed that privilege is not protected in e-mail communication. Although most of the court’s discussion focuses on a lack of "reasonable expectation of privacy" after it has been received by a third party, the fact that an e-mail is almost instantaneously received by any parties with access once the "send" button is clicked, suggests that such expectation is lost as soon as the message is sent. This was emphasized with the court’s discussion of the subpoena of the electronic communication from the internet service provider rather than from the sender. The court reasoned that because the sender of the e-mails had no "reasonable expectation of privacy," and voluntarily allowed third parties access to the information, the court could subpoena the messages. This would avoid a Fourth Amendment violation that would take place if they were to have gotten the e-mails directly from the sender.

The Eleventh Circuit, similar to the Iowa and South Carolina courts discussed in the ISBA opinion 96-10, seems to hold the opinion that using e-mail to transmit information that is confidential automatically waives attorney-client privilege, and may be accessed by the court. The Eleventh Circuit does not equate e-mail communication with telephone communication, or discuss the illegality of intercepting e-mail messages that are not intended for a certain recipient. Instead, the Florida court focused on the way modern electronic communication works and the third parties involved with the delivery of every message sent through the system.

By contrast, a New Jersey case, Stengart v. Lovingcare Agency, Inc., recently agreed with the decision of the Illinois State Bar Association, and held that using e-mail for the transmission of a confidential message does not automatically waive attorney-client privilege. Stengart recognized, as the Illinois State Bar Association did, a reasonable expectation of confidentiality for e-mails sent from a private, password protected e-mail account.

The defendant in Stengart argued that due to the company policy on computer use and the fact that plaintiff had used a company computer to access her personal e-mail account, plaintiff had waived the attorney-client privilege of e-mails sent between her and her attorney. The court disagreed with this argument, discussing the non-specific language used in the company policy, as well as the long-recognized significance of the attorney-client privilege and holding that since there was no notice given to plaintiff that messages from her personal, password protected e-mail address would be copied onto the hard drive of the company’s computer. Had the plaintiff been given notice that this was the case, using her private e-mail account may have been seen as a voluntary allowance of the company to view her communication with her attorney, and thus a waiver of privilege. Instead, the defendant’s attorneys faced issues of not reporting that they had mistakenly received another attorney’s privileged communication. This case suggests that any private e-mailing between attorney and client where no company policy is known would be privileged. This is consistent with the ABA opinion on e-mail communication, which also states that it believes e-mail communication carries a reasonable expectation of privacy and does not conflict with the attorney-client privilege.

The ABA Opinion. The 1999 ABA opinion describes four separate types of e-mail communication and how they work, discussing how each in turn should be considered secure enough to carry confidential information between attorney and client without needing to take special precautionary measures such as encryption or consent of the client. As the ABA found a reasonable expectation of privacy in these e-mail types, it held that e-mail does not waive the attorney-client privilege. In 1999, when this opinion was written, the majority of electronic communication was still transferred through telephone land lines, and thus was considered to be just as secure as a typical telephone conversation. With all of the advances in technology, even cell phones can send and receive e-mails today. It will be interesting to see if these changes will alter the way e-mail communication is viewed through the rules of professional responsibility.

Need for Clarification. As set forth in the Preamble of the Illinois Rules of Professional Responsibility, the practice of law is regulated in order to maintain the legal profession as one of a public trust with a high degree of integrity. These rules are enforced by the power to discipline attorneys that do not follow the rules. If it is to be a complete set of rules, it must be updated to include modern circumstances and instruction on how to deal with new problems attorneys face as technology develops.

As can be seen with the many court decisions and ethics opinions on the topic of electronic communication in various jurisdictions, this is a large area of contention today in which the rules are not clear. The Illinois State Bar Association has taken a stand in its opinion on electronic communication that it considers such exchanges to be just as secure as a standard telephone call. Illinois case law supports this decision, and it is consistent with the ABA opinion on the matter. Because of the conflict in other jurisdictions, Illinois attorneys may not be aware of the stance that has been taken on the matter and may be unsure of how to deal with e-mail communication. To solve this problem, and to make clear the very important rules of professional responsibility, rule 1.6 on confidentiality should contain a comment about the current stance on electronic communication.

Not only would specifying the Illinois position on electronic communication in the rule provisions help attorneys decide what actions to take in their day-to-day interactions with clients, but it would also guide the courts in future cases involving issues of confidential information. E-mail use is more prevalent today than ever before and nearly everyone sends information in this format on a regular basis. Future litigation based on this issue could be avoided if the state rules were clear on what is expected of attorneys and clients when handling confidential materials. The ease of simply putting in a comment regarding a prevalent issue makes it seem strange that most states would not have done so already. In keeping the rules of professional responsibility current with the issues that are the most prevalent, the rules will better serve practicing attorneys and make it easier for them to protect the interests of their clients in practical ways.

DCBA Brief