On Risk Management: Loss Prevention Tips for Electronic Communications with Clients
By Kay G. Kenny
The Daily Record, May 7, 2001

The almost universal use of fax machines, e-mails and cellular phones has added another level of complexity to lawyers’ responsibilities — specifically, the protection of confidential information received within the context of the attorney-client relationship.

Once you reach out electronically, by telephone or computer, there is at least the risk of unauthorized interception and the prospect that the communication will be stored electronically in an unknown location for an uncertain duration.

Inadvertent disclosure of confidential client information is a breach of duty that may lead to revelations against the client’s wishes or disclosures that hurt the client’s case. Horror stories abound of the defense team strategy fax sent to opposing counsel, the cellular phone conversation picked up by channel-surfers, or the e-mail sent to a distribution list instead of a single person.

Whenever such disclosures damage the client, the possibility of a legal malpractice case arises. There are, however, a number of risk management procedures for these new technologies.

Fax machines and transmissions

The fax machine has become an integral part of our business and professional life. Its most valuable characteristic, instant communication, is also its most dangerous. Once the wrong “speed dial” button has been pushed, inadvertent exposure is just minutes away.

Examine your office fax policies and procedures: How does your firm control the use of outgoing fax transmissions for the communication of confidential information? How does it handle the receipt of incoming confidential fax transmissions intended specifically for someone in your office? What do you do when you receive misdirected confidential fax transmissions?

A few tips for decreasing your risk:

  • If you don’t already have a set of policies and procedures, start now — and make sure all attorneys and support staff receive training.
  • It is best to use messenger or overnight service for confidential communications.
  • When a fax transmission is used for confidential or privileged material, an appropriate “confidential” notice should be placed on the cover sheet and stamped on each page of confidential communications. (However, do not use the “confidential” notice unless the communication is confidential.
  • Never put an adversary’s fax number on your fax machine’s speed dial.
  • Consider the ethical implications whenever you receive a fax sent in error.
  • When you do use your fax machine for confidential communication, call the intended recipient to make sure it was properly received.

    • Computer concerns

    Attorneys and law firms are flocking to the Internet. In addition to its use for legal research, locating experts and keeping abreast of breaking news, the Internet is being used to efficiently speed communications within an office, between offices, with clients and for marketing. Electronic communications offer the advantages of lower costs and reduced storage requirements in addition to their remarkable speed and content-based access capabilities.

    However, there are three key concerns about the use of the Internet. First, there is the question of the security of transmissions as they zip through cyberspace. Some experts compare the use of e-mail on the Internet with sending postcards through the mail: both are open for all to read.

    Be aware that individuals outside of your office might be able to access your internal files through your Internet connection. This includes former partners, former employees, technologically sophisticated adversaries or curiosity seekers.

    Also, the ease of communication and transmission of documents raises concerns that proper care may not be taken, and that the protection of confidentiality may be lost. This is a potential problem within the firm and with your clients.

    Thus, as with fax transmissions, it is important to be cautious about what happens at both ends of the use of technology.

    Risk management for e-mail

    E-mail is a great tool, but not right for every occasion. Use good judgment, and establish a written e-mail policy, training manual and procedures regarding use of passwords and encryption.

    Issues surrounding the use of e-mail and the Internet are evolving rapidly, and you’ll nee Monitor this emerging area and keep your loss prevention and training up to date.

    A few do’s and don’ts:

  • Do not use e-mail for truly sensitive client information and communications.
  • Do not presume your colleagues are using e-mail carefully and correctly. Make sure all users understand those policies and procedures.
  • Carefully implement the use of encryption software at your firm.
  • Use a “Confidential” notice on private or privileged e-mail messages, much as you would on a confidential fax.
  • At a minimum, communicate the risks of e-mail interception and misdirection to your clients. Obtain your client’s informed consent to use electronic mail for any confidential communication along with a written acknowledgment and waiver of liability for any resultant loss of privacy or privilege.
  • Check and double-check the contents you are about to send and to whom you are about to send it.
  • Establish a written policy regarding storage, retrieval and deletion of e-mail’s from the firm’s system and educate all lawyers on the implications of the policy.
  • Store privileged information in separate files, directories and sub-directories.

    • Cordless and cellular phones

    Cordless and cellular phones increase business opportunities, productivity, mobility and accessibility for attorneys and other professionals. However, their vulnerability to interception presents a significant confidentiality problem.

    Most of us have had the experience of inadvertently “sharing” a channel with other parties while speaking on a portable phone. These telephone technologies actually use radio broadcasts that can be picked up, scanned and recorded with great ease. The question is whether or not callers using portable phones have a reasonable expectation of privacy. Again, you, the attorney, must take reasonable precautions to avoid any inadvertent disclosure.

    Whether or not the use of intentionally intercepted transmissions is allowed through publication or presentation as evidence in court, the confidentiality of attorney-client communication has been lost when calls are intercepted.

    The conventional wisdom (and many state bar associations) dictate the following on the use of portable phone technology:

  • Use caution when using cordless and cellular phones, and don’t use them for confidential conversations.
  • Advise other parties that you are on a portable phone and ask if they are.
  • Inform clients that portable phone conversations may not be private or privileged.
  • Employ all available security devices for portable phones, including encryption.

    • Conclusion

    While technological advances rapidly change the common forms of communication between attorney and client, the attorney’s duty to protect and preserve confidential information within the attorney-client relationship remains unchanged.

    The byword for any new technology is caution. Cellular and cordless phones, faxes, and e-mail communications can be intercepted or misdirected, and therefore should be used with care. Attorneys need to understand the potential problems incumbent in the use of any new technology. Otherwise, the risk of misuse and injury to the client could possibly lead to a claim for legal malpractice.

    Resources

    Risk Management For Lawyers/The Cutting Edge. “Inadvertent Disclosure Made Easy - Cautions About the New Technologies.” CNA PRO, 1996.
    The Lawyer’s Desk Guide to Legal Malpractice, 2nd Edition. “Electronic Communications,” 1999.

    Kay G. Kenny is Assistant General Manager of the Legal Mutual Liability Insurance Society of Maryland. This is the tenth in a series of articles on claim prevention techniques. The material presented does not establish, report or create the standard of care for attorneys, is not legal advice and does not represent a complete analysis of the topics. Readers should conduct their own appropriate research.

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