ABA Issues Major Ruling on Ethics of Email and Electronic Communications

The American Bar Association’s Standing Committee on Ethics and Professional Responsibility has issued a major new opinion providing guidance on the steps lawyers should take to protect client confidentiality in electronic communications.

The new opinion, Formal Opinion 477 (embedded copy below), updates Formal Opinion 99-413, issued in 1999, to reflect changes in the digital landscape as well as 2012 changes to the ABA’s Model Rules of Professional Conduct, particularly the addition of the duty of technology competence in Model Rule 1.1 and changes to Rule 1.6 regarding client confidences.

Most notably, the opinion says that some circumstances warrant lawyers using “particularly strong protective measures” such as encryption. In the 1999 opinion, the committee concluded that unencrypted email was acceptable because lawyers have a reasonable expectation of privacy in all forms of email communications.

Read more here.

This article was submitted by Jonathan T. Armiger, Wagner Reese LLP. If you would like to submit content or write an article for the E-Discovery, Information Governance & Cybersecurity Section page, please email Kara Sikorski at ksikorski@indybar.org.