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ARTICLE · 17 NOVEMBER 2011

Ethical Electronics: New Guidance On Protecting The Confidentiality Of Attorney-Client E-mails

Blank Rome LLP
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On August 4, 2011, the American Bar Association (the "ABA") issued Formal Opinion 11-459 (the "Opinion"), stating that lawyers have a duty to warn their clients not to use a workplace computer, network, or device to communicate with their personal lawyer.

United StatesLitigation, Mediation & Arbitration
Joseph Poluka
Joseph Poluka
Michelle Gitlitz Courtney
Michelle Gitlitz Courtney

On August 4, 2011, the American Bar Association (the "ABA") issued Formal Opinion 11-459 (the "Opinion"), stating that lawyers have a duty to warn their clients not to use a workplace computer, network, or device to communicate with their personal lawyer.  Lawyers must explain that, in using an employer's computer or devise, there is a significant risk that a third party may gain access to the client's communications, thereby jeopardizing their confidentiality.  The ABA provided the following hypothetical as an example of when this duty applies:

An employee has a computer assigned for her exclusive use in the course of her employment.  The company's written internal policy provides that the company has a right of access to all employees' computers and e-mail files, including those relating to employees' personal matters.  Notwithstanding this policy, employees sometimes make personal use of their computers, including for the purpose of sending personal e-mail

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