Encrypting Emails: ABA Issues New Guidance Addressing Security Concerns Over Attorney-Client Communications

In May, the American Bar Association ("ABA") released a Formal Opinion 477, providing guidance on attorney use of emails in communication with clients. In doing so, the ABA has promulgated a new standard when considering the level of protections necessary while using technology to converse about a legal representation. According to the ABA, a lawyer generally may transmit information relating to the representation of a client over the Internet when the lawyer has undertaken "reasonable efforts" to prevent inadvertent or unauthorized access to information relating to the representation. Under this reasonable-efforts standard, however, the ABA explicitly warns that a lawyer may be required to take special security precautions, like the use of encrypted emails, when the information warrants a higher degree of security.