PLAYING I SPY WITH CLIENT CONFIDENCES: CONFIDENTIALITY, PRIVILEGE AND ELECTRONIC COMMUNICATIONS

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Nov 24, 2013 (3 years and 11 months ago)

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PLAYING
I SPY

WITH CLIENT CONFIDENCES:
CONFIDENTIALITY, PRIVILEGE AND
ELECTRONIC COMMUNICATIONS


by Mitchel L. Winick,
*

Brian Burris,
**

and Y. Danaé Bush
***


1.


I
NTRODUCTION

................................
................................
......................

1226


II.


H
ISTORY OF THE
A
TTORNEY
-
C
LIENT
P
RIVILEGE

................................

1228

1.

Eng
lish Common Law

................................
................................
...

1228

2.

Attorney
-
Client Privilege in America Prior to 1900

.....................

1231

3.

The Modern Privilege

................................
................................
...

1232


III.


D
EFINING
C
ONFIDENTIAL
C
OMMUNICATION

................................
.....

1235

1.

The Fourth Amendment

................................
...............................

1235

2.

Title III of the Omnibus Crime Control and Safe Streets

Act of
1968

................................
................................
...................

1236

3.

Wireless Communications

................................
............................

1237

4.

Cellular Communications

................................
.............................

1239

5.

Facsimile Communications

................................
...........................

1239


IV.


W
AIVER OF THE
A
TTORNEY
-
C
LIENT
P
RIVILEGE

................................
.

1240

22.


T
HE
E
LECTRONIC
C
OMMUNICATIONS
P
RIVACY
A
CT OF
1986


AND THE
1994

A
MENDMENTS

................................
...............................

1242


VI.


E
-
M
AIL
C
OMMUNICATIONS AND TH
E
A
TTORNEY
-
C
LIENT

P
RIVILEGE

................................
................................
...............................

1243

1.

Out of the Mailbox, into Electronic Oblivion, and Back

Again

................................
................................
..............................

1244

2.

Types of E
-
Mail Systems

................................
...............................

1245

3.

The Electronic Communications Privacy Act of 1986

and E
-
Mail

................................
................................
.....................

1248


VII.


R
E
GULATING
A
TTORNEY
C
OMMUNICATIONS

................................
.....

1248

1.

American Bar Association Ethics Opinions

................................
.

1249

2.

Overlooked Standards of Care Included in the ABA

Opinion

................................
................................
..........................

1251

3.

State Bar Ethics Standards

................................
............................

1252

4.

Malpractice Risks

................................
................................
...........

1254






*

Assistant Dean and Lecturer, Texas Tech University School of Law, 1999; B.A., University of the
Pacific, 1976; J.D., University of Houston, 1978.


**

J.D. Texas Tech University Schoo
l of Law, 2000.


***


Editor
-
in
-
Chief of the Texas Tech Journal of Texas Administrative Law, 1999
-
2000. B.G.S., West
Texas A&M, 1986; J.D. Texas Tech University School of Law, 2000.

VIII.

C
ONCLUSION

................................
................................
................................
...

1255




I.

I
NTRODUC
TION


One of the most critical elements for the effective administration of justice
is the obligation of individuals to testify fully and truthfully in the course of legal
proceedings.
1

Yet, despite this foundational requirement,

certain privileges have
emerged as exceptions to the general duty to testify.
2

These privileges reflect
societal values which elevate the protection of certain relationships to a higher
level than the need for probative evidence.
3

While admittedly an ob
stacle to the
fact
-
finding process, privileges are justified on public policy grounds.
4

As arguably the oldest common law privilege, the attorney
-
client privilege
developed “to encourage full and frank communication between attorneys and
their clients and
thereby promote broader public interests.”
5

This privilege
supports the fundamental principle that sound legal advice depends upon
attorneys being fully informed by their clients.
6

In addition, for clients to receive
the full value of their legal represe
ntation, the privilege must encourage and
protect the “free flow of communication” between attorney and client.
7

In fact, it
is the strong public interest in allowing privileged communications between client
and attorney which has been the basis for uphol
ding a privilege affording “all
communications between attorney and client absolute and complete
protection.”
8





1
.

See

United States v. Bigeleisen, 625 F.2d 203, 207 (8th Cir. 1980).


2
.

See

Jaffee v. Redmond, 518 U.S. 1, 6 (1996).


3
.

See id
.


4
.

See

Ronald J. Colombo,
Forgive Us Our Sins: The Inadequacies of the Clergy
-
Penitent Privilege
,
73
N.Y.U.

L.

R
EV
.

225, 226
-
27 (1998).


5
.

Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); 8

J.

W
IGMORE
,

E
VIDENCE

§ 2290
(McNaughton rev. 1961).


6
.

See

Upjohn Co.
, 449 U.S. at 389.


7
.

Ohio
-
Sealy Mattress Mfg. Co. v. Kaplan, 90 F.R.D. 21, 28 (N.D. Ill. 1980);
see also

C
HRISTOPHER
B.

M
UELLER
&

L
AIRD
C.

K
IEKPATRICK
,

E
VIDENCE

§ 5.1, at 320 (2d ed.
1999) (justifying the privilege on
“instrumental grounds”).


8
.

Allen v. McGraw, 106 F.3d 582, 600 (4th Cir. 1996).

2000]

PLAYING I SPY WITH CLIENT

CONFIDENCES

3


While the attorney
-
client privilege is firmly rooted in the modern American
legal system, historians disagree on the exact origin of the privile
ge.
9

Some
historians suggested the restriction began during second century Rome when
slaves were prohibited from disclosing communications made by their master or
their master’s family.
10

Others suggested the privilege originated as a judicial
extension
of an individual’s self
-
incrimination rights.
11

Despite the disagreement
about its origin, the modern attorney
-
client privilege began its development in
sixteenth century England as part of the law of witnesses.
12

This early concept of
the attorney
-
clien
t privilege was subsequently incorporated into United States
common law.
13

During the majority of the past century, communication between an
attorney and client primarily transpired through in
-
person meetings, telephone
calls, and the transfer of informati
on through the United States Postal Service or
private carriers such as United Parcel Service and Federal Express. Rules of
professional conduct and case law established the standards for protecting
attorney
-
client communication conveyed in these traditio
nal methods.
14

In contrast to the traditional forms of communication, the rapid
development of new technology for electronic communication created new
challenges to the attorney
-
client privilege.
15

In the last twenty years, attorneys
began to use fax mach
ines to transfer client information. Over the past ten
years, the use of wireless radio, cellular, and digital communications have
become commonplace. Within the past five years, e
-
mail and the Internet
added additional options for attorney
-
client commun
ications. Thus, each
modern technological advance has taken attorneys and their clients one step
farther from the closed
-
door, personal interactions upon which the privilege was
founded.
16

Accordingly, with each step, the legal profession has been confro
nted
with challenges to the privilege.

Despite these new technologies, cases addressing modern communication
methods are not typically related to the attorney
-
client privilege.
17

Most cases
relate to violations of federal wiretap statutes or the Fourth Am
endment’s




9
.

See

Note,
Developments in the Law: Privileged Communications
, 98
H
ARV
.

L.

R
EV
.

1501, 1502
(1985).


10
.

See

Christine Hatfield,
The Priv
ilege Doctrines: Are They Just Another Discovery Tool Utilized
by the Tobacco Industry to Conceal Damaging Information?
, 16
P
ACE
L.

R
EV
.

525, 537 (1996) (citing Marshal
Williams,
The Scope of the Corporate Attorney
-
Client Privilege in View of Reason and Ex
perience
, 25
H
OW
.

L.

J.

425, 426 (1982)).


11
.

See

United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991).


12
.

See

P
AUL
R.

R
ICE
,

A
TTORNEY
-
C
LIENT
P
RIVILEGE IN THE
U
NITED
S
TATES

§ 1, at 6 (2d ed.
1999).


13
.

See id
.


14
.

See

M
ODEL
R
ULES OF
P
ROFESSIO
NAL
C
ONDUCT

Rule 1.6 (1983).


15
.

See generally

Todd H. Flaming,
Internet E
-
Mail and the Attorney
-
Client Privilege
, 85 Ill. B.J. 183,
183 (April 1997) (discussing security of e
-
mail messages over the Internet).


16
.

See

Stephen M. Johnson,
The Internet Cha
nges Everything: Revolutionizing Public Participation
and Access to Government Information Through the Internet
, 50
A
DMIN
.

L.

R
EV
.

277, 331 (1998).


17
.

But see

McCook Metals, L.L.C., v. Alcoa, Inc., No. 99C3856, 2000 WL 24621, at *1 (N.D. Ill.
Mar. 2, 200
0); Playboy Enters. v. Wells, 60 F. Supp. 2d 1050 (1999).

4

TEXAS TECH LAW REVIEW

[Vol. 31:1225


unreasonable search and seizure prohibition.
18

Because the former eliminated
many concerns about electronic communications and the latter utilizes similar
standards of “reasonable expectation of privacy,” both are relevant to the
discussion abou
t electronic communication of attorney
-
client privileged
information.
19





18
.

See, e.g.
, United States v. Hoffa, 436 F.2d 1243, 1247 (7th Cir. 1970); United States v. Maxwell, 42
M.J. 568, 375
-
76 (U.S. Air Force Ct. Crim. App. 1995),
rev’d in part

45 M.J. 406 (C.A.A.F. 1
996).


19
.

Virtually every State Bar Ethics Committee has issued opinions, rules or regulations related to the
use of cellular phones, cordless phones, and other similar wireless communications devices. Practitioners
should check with their state bar to d
etermine ethical ramifications at the state level to such communications.

2000]

PLAYING I SPY WITH CLIENT

CONFIDENCES

5


Besides the lack of case law addressing the issue, the use of modern
communication technology creates new questions regarding the level of
protection required to ensure client confide
ntiality and to maintain the attorney
-
client privilege.
20

Lawyers are required by strict rules of ethics to keep
information about their clients confidential.
21

Accordingly, attorneys can be
sanctioned through grievance proceedings and be held liable for

malpractice if
they harm the client by failing to take reasonable precautions to protect
confidential client information.
22

In this modern era of technological
communication, it is essential for lawyers to develop standards that will continue
to protect
one of the oldest and most important societal values

the attorney
-
client privilege.
23

This article will address the challenges attorneys face when confronted with
the attorney
-
client privilege in light of modern technology. Part II will discuss
the histor
y of the privilege and the modern privilege. Part III will define
confidential communication. Part IV will address waiver of the privilege, and
Part V will discuss the Electronic Communications Privacy Act. Part VI will
address e
-
mail and the attorney
-
c
lient privilege. Finally, Part VII will discuss
regulation of attorney
-
client communications.


II.

H
ISTORY OF THE
A
TTORNEY
-
C
LIENT
P
RIVILEGE


Historians disagree on the exact origin of the attorney
-
cl
ient privilege.
24

However, the modern attorney
-
client privilege began its development in
sixteenth century England as part of the law of witnesses.
25


A. English Common Law






20
.

See generally

Flaming,
supra

note 15, at 183 (discussing security concerns with e
-
mail
communications).


21
.

See

M
ODEL
R
ULES OF
P
ROFESSIONAL
C
ONDUCT

Rule 1.6 (1983).


22
.

See

R
O
NALD
E.

M
ALLEN
&

J
EFFREY
M.

S
MITH
,

L
EGAL
M
ALPRACTICE
, §§ 8.12, 18.2 (4th ed.
1996).


23
.

See

Betty Ann Olmsted,
Electronic Media: Management and Litigation Issues When “Delete”
Doesn’t Mean Delete
, 63
D
EF
.

C
OUNS
.

J.

523, 525, 527
-
28 (1996).


24
.

See

Develo
pments in the Law
,
supra

note 9, at 1450.


25
.

See

R
ICE
,
supra

note 12, at 6.

6

TEXAS TECH LAW REVIEW

[Vol. 31:1225


Under early English common law, attorneys prese
nted the facts of the case
along with limited witness testimony.
26

However, in these early proceedings,
parties to the litigation were not considered competent to testify.
27

As a result,
opposing parties attempted to force disclosure of confidential info
rmation by
compelling counsel to testify.
28

The earliest cases addressing the basic attorney
-
client privilege appeared from 1576 to 1583 in English courts and held the
privilege belonged to the attorney.
29

Therefore, the privilege protected the
attorney
from being forced to testify or to be examined on any matter relating to
the representation of a client.
30

A significant change in the attorney
-
client privilege occurred during the
early 1700s when ownership of the privilege shifted from the attorney to th
e
client.
31

Although the purpose of the privilege continued to be the protection of
confidential information, the underlying reasoning behind the protection
changed.
32

The privilege shifted from protecting the attorney from forced
testimony to protecting

the client’s right to make a full disclosure to her attorney
without the fear of future disclosure.
33

In addition, the change placed the client
in control of deciding whether to waive the privilege to allow disclosure of
confidential information.
34

By 1
712, the King’s bench officially held that the
privilege belonged to the client rather than the legal advisor.
35

Interestingly, in
one of its earliest decisions upholding the attorney
-
client privilege, the United
States Supreme Court quoted from the Engli
sh case
Greenough v. Gaskell
:
36

‘[I]t is out of regard to the interests of justice, which cannot be upholden, and
to the administration of justice, which cannot go on, without the aid of men
skilled in jurisprudence

in the practice of courts

and in those matters affecting
the rights and obligations which form the subject of all judicial proceedings. If
the privilege did not exist at all, every one would be thrown upon his own legal
resources. Deprived of all professional assistance, a man wo
uld not venture to
consult any skillful person, or would only dare to tell his counselor half his
case.’
37





26
.

See id
. at 11.


27
.

See id
.


28
.

See id
.


29
.

See id
. (citing Berd v. Lovelace, 21 Eng. Rep. 33 (Ch. 1576
-
77); Austen v. Vesey, 21 Eng. Rep. 34
(Ch. 1577); Hartford v. Lee,
21 Eng. Rep. 34 (Ch. 1577
-
78); Kelway v. Kelway, 21 Eng. Rep. 47 (Ch. 1579
-
80);
Creed v. Trapp, 21 Eng. Rep. 74 (Ch. 1578
-
79); Dennis v. Codrington, 21 Eng. Rep. 53 (Ch. 1579
-
80); Strelly
v. Albancy, 21 Eng. Rep. 95 (Ch. 1582
-
83)).


30
.

See

Upjohn Co. v. U
nited States, 449 U.S. 383, 389 (1981).


31
.

See

Alvin K. Hellerstein,
A Comprehensive Survey of the Attorney
-
Client Privilege and Work
-
Product Doctrine
, 540
P
RACTICING
L.

I
NST
.

L
ITIG
.

&

A
DMIN
.

P
RAC
.

C
OURSE
H
ANDBOOK
S
ERIES

589, 607
(1996) (citing
In re

Col
ton, 201 F. Supp. 13, 15 (S.D.N.Y. 1961)).


32
.

See

R
ICE
,
supra

note 12, at 12
-
13.


33
.

See id
.


34
.

See

Hellerstein,
supra

note 31, at 607; Rice,
supra

note 12, at 6.


35
.

See

Rice,
supra

note 12, at 13 (citing Lord Say and Seal’s Case, 88 Eng. Rep. 617 (
K.B. 1712)).


36
.

39 Eng. Rep. 618 (Ch. 1833).


37
.

Blackburn v. Crawfords, 70 U.S. (3 Wall.) 175, 192
-
93 (1865) (quoting
Greenough
, 39 Eng. Rep.
618).

2000]

PLAYING I SPY WITH CLIENT

CONFIDENCES

7


The scope of the privilege initially included: (1) confidential information
provided by the client to the attorney for legal purposes
, and (2) legal advice
provided by the attorney to the client.
38

The privilege did not cover criminal
activities
39

or extend to information received as a result of being a witness to a
transaction or deed.
40

Unlike the modern privilege, the historical pr
ivilege
protected communication “if it was made
within

the confidential
relationship
,
not because the information it contained was confidential.”
41

This early
distinction meant that the presence of other people during the communication
did not destroy the

privilege.
42

In addition, the fact that others knew the contents
of the communication did not impact the privilege.
43

Although confidential communications between the client and attorney
during the process of a lawsuit were protected,
44

the scope of the
privilege was
limited by the House of Lords in 1730.
45

The House of Lords held in
Radcliffe
v. Fursman

that opinions given by counsel to clients were protected from a bill of
discovery, but that the client’s written communications soliciting the advice we
re
not protected.
46

This protection was later expanded to included communications
made after a dispute had arisen but before the suit was instigated.
47

Finally, in
1873 the Lord Chancellor expanded the privilege to include communications
not related to a
n actual dispute if the communications in question were with a
legal advisor and were professional in nature.
48

After 1712, the client held the privilege for the purpose of determining
waiver.
49

However, the legal advisor continued to be protected from di
sclosing
confidential communications.
50

In one of the most important and often cited
decisions concerning privilege during the nineteenth century, the court in
Greenough v. Gaskell

held that confidential communications made within the
scope of professiona
l employment were protected.
51

Lord Chancellor Brougham
formulated the privilege by stating:





38
.

See

R
ICE
,
supra

note 12, at 16 (citing Creed v. Trap, 21 Eng. Rep 74 (1578
-
79); Radcliffe v.
Fursma
n, 1 Eng. Rep. 1101 (H.L. 1730)).


39
.

See id
. (citing Annesley v. Anglesea, 17
H
OW
.

S
T
.

T
R
.

1139, 1225 (1743)).


40
.

See id
. at 17.


41
.

Id
. at 19.


42
.

See id
.


43
.

See id
.


44
.

See id
. at 22.;
see also

Valiant v. Dodemead, 21 Eng. Rep. 203 (Ch. 1743) (i
ndicating an assertion
of the historical privilege by counsel).


45
.

See

R
ICE
, at 12 (citing Radcliffe v. Fursman, 1 Eng. Rep. 1101 (H.L. 1730)).


46
.

See id
.


47
.

See id
. at 22. (citing Hughes v. Biddulph, 38 Eng. Rep. 777 (Ch. 1827); Vent v. Pacey, 38 En
g.
Rep. 778 (Ch. 1830); Clagett v. Phillips, 63 Eng. Rep. 36 (V.C. 1842)).


48
.

See id
. at 26 (citing Minet v. Morgan, L.R. 8 Ch. App. 361 (1873); Pearse v. Pearse, 63 Eng. Rep.
950 (V.C.1846)).


49
.

See id
. at 13.


50
.

See id
. at 34.


51
.

See id
. (citing
Greenough v. Gaskell, 39 Eng. Rep. 618 (Ch. 1833)).

8

TEXAS TECH LAW REVIEW

[Vol. 31:1225


If touching matters that come within the ordinary scope of professional
employment, they receive a communication in their professiona
l capacity,
either from a client, or on his account, and for his benefit in the transaction of
his business, or, which amounts to the same thing, if they commit to paper, in
the course of their employment on his behalf, matters which they know only
through

their professional relation to the client, they are not only justified in
withholding such matters, but bound to withhold them, and will not be
compelled to disclose the information or produce the papers in any Court of
law or equity, either as party or a
s witness.
52

By the end of the nineteenth century, the attorney
-
client privilege had expanded
to include all confidential communications between clients and attorneys acting
in their professional capacity.
53


B. Attorney
-
Client Privilege in
America Prior to 1900


The rule which places the seal of secrecy upon communications between client
and attorney is founded upon the necessity, in the interest and
administration
of justice, of the aid of persons having knowledge of the law and skilled in its
practice, which assistance can only be safely and readily availed of when free
from the consequences or the apprehension of disclosure. But the privilege is
th
at of the client alone, and no rule prohibits the latter from divulging his own
secrets; and if the client has voluntarily waived the privilege, it cannot be
insisted on to close the mouth of the attorney.
54

This earliest concept of the attor
ney
-
client privilege was incorporated easily
into United States common law.
55

Prior to 1820, twenty reported cases
recognized the privilege as it existed in England but did not limit the privilege to
communications made in anticipation of litigation.
56

T
hen in 1826, the United
States Supreme Court expressly recognized the existence of the privilege in
Chirac v. Reinicker
.
57

In this case, the Court held that merely identifying an
individual as a client of an attorney does not violate the privilege, but st
ated in
dictum that an attorney can never disclose facts communicated by the client.
58





52
.

Id
. at 36 (quoting Greenough v. Gaskell, 39 Eng. Rep. 618, 620 (1833)).


53
.

See id
. at 38.


54
.

Hunt v. Blackburn, 128 U.S. 464, 470 (1888).


55
.

See

R
ICE
,
supra

note 12, at 6.


56
.

See id
. at 38
-
39
.


57
.

See

James F. Glunt,
Evidence, Attorney
-
Client Privilege: Survival of the Privilege After the Client’s
Death
, 37
D
UQ
.

L.

R
EV
.

385, 393 (1999) (citing Chirac v. Reinicker, 24 U.S. 280 (1826)).


58
.

See id
.

2000]

PLAYING I SPY WITH CLIENT

CONFIDENCES

9


In 1888, the United States Supreme Court recognized the necessity of the
privilege and identified it as belonging to the client.
59

The Court stated in
Hunt
v. Blackbur
n

that the privilege allowed clients to make full disclosure of
confidential information in order to obtain “the aid of persons having knowledge
of the law and skilled in its practice, which assistance can only be safely and
readily availed of when free fr
om the consequences or the apprehension of
disclosure.”
60

Early American cases extended the scope of the privilege to
include complete protection of virtually all communications made within the
attorney
-
client employment relationship.
61

In an effort to re
verse what he believed to be an overly broad interpretation
of the privilege, Professor Wigmore set out narrowly defined elements of the
privilege in his seminal treatise
Evidence
.
62

He stated that the privilege applied
only to confidential communications

in which:

(1) legal advice of any kind is sought, (2) from a professional legal adviser in his
capacity as such, (3) the communications relating to that purpose, (4) made in
confidence, (5) by the client, (6) are at his instance permanently
protected, (7)
from disclosure by himself or by the legal adviser, (8) except the protection be
waived.
63

Although influenced by English precedents, it was clear that American courts
had established their own standards for the attorney privil
ege by the end of the
nineteenth century.
64


C. The Modern Privilege


As a rule of evidence, the attorney
-
client privilege protects confidential
communications between clients and their attorneys.
65

However, the privileg
e
only protects communications which satisfy the eight essential elements
identified by Wigmore.
66

This basic privilege was restated in an oft
-
quoted opinion by Judge
Wyzanski in
United States v. United Shoe Machinery Corp.

in 1950.
67





59
.

See

Hunt v. Blackburn, 128 U.S. 464, 470

(1888).


60
.

Id
.


61
.

See

Hatfield,
supra
note 10, at 538.


62
.

See

W
IGMORE
,
supra

note 5, § 2290 at 554.


63
.

Id
.


64
.

See

R
ICE
,
supra

note 12, at 6.


65
.

See id
. at § 2 at 8.


66
.

See id
.


67
.

89 F. Supp. 357, 358
-
59 (D. Mass 1950).

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TEXAS TECH LAW REVIEW

[Vol. 31:1225


The pr
ivilege applies only if (1) the asserted holder of the privilege is or sought
to be come a client; (2) the person to whom the communication was made (a)
is a member of the bar of a court, or his subordinate and (b) in connection with
this communication is
acting as a lawyer; (3) the communication relates to a fact
of which the attorney was informed (a) by his client (b) without the presence of
strangers (c) for the purpose of securing primarily either (i) an opinion on law
or (ii) legal services or (iii) as
sistance in some legal proceeding, and not (d) for
the purpose of committing a crime or tort; and (4) the privilege has been (a)
claimed and (b) not waived by the client.
68

Although never formally adopted, Federal Rule of Evidence 503(b) larg
ely
incorporates the elements identified in
United Shoe
.
69

Under the current rule of
evidence, federal courts determine the scope of the privilege according to “the
principles of the common law as they may be interpreted by the courts of the
United States

in the light of reason and experience.”
70

As a result, federal courts
have developed a body of common law with regard to the attorney
-
client
privilege.
71

As stated by proposed Rule 503,

A client has a privilege to refuse to disclose and to

prevent any other person
from disclosing confidential communications made for the purpose of
facilitating the rendition of professional legal services to the client, (1) between
himself or his representative . . . (2) between his lawyer and the lawyer’s
r
epresentative, or (3) by him or his lawyer to a lawyer representing another in a
matter of common interest, or (4) between representatives of the client or
between the client and a representative of the client, or (5) between lawyers
representing the clien
t.
72

In its modern version, the privilege is not limited to natural persons.
73

Courts
have expanded the privilege to include corporations and other legal entities.
74





68
.

Id
.


69
.

See id
.


70
.

Glunt,
supra

note 57, at 399 (citing
F
ED
.

R.

E
VID
.

501).


71
.

See id
.


72
.

Proposed
F
ED
.

R.

E
VID
.

503(b). When approving the Federal Rules of Evidence, Congress
rejected proposed rules codifying the common law privilege.
See

Tennenbaum v. Deloitte

& Touche, 77 F.3d
377, 340 (9th Cir. 1996) (stating that these proposed rules should not be viewed as authority, but have served as
a model for states’ rules of evidence).


73
.

See

C
HARLES
A
LAN
W
RIGHT
&

K
ENNETH
W.

G
RAHAM
,

J
R
.
, 24
F
ED
.

P
RAC
.

&

P
ROC
.

E
VID
.

§
5472 (1986).


74
.

See id
.

2000]

PLAYING I SPY WITH CLIENT

CONFIDENCES

11


The protection of the privilege is absolute unless the communication fall
s
under one of a limited number of exceptions.
75

The attorney
-
client privilege
attaches when clients initially seek legal advice or representation, regardless of
whether the attorney ultimately accepts the employment.
76

The privilege
continues with regar
d to communications made during the relationship even
after termination of the relationship or death of the client.
77

However,
communications made between the client and the attorney after termination of
the professional relationship are not protected.
78


An additional limitation states
that the privilege “only protects disclosure of communications; it does not
protect disclosure of the underlying facts by those who communicated with the
attorney.”
79

Despite the attorney
-
client privilege’s venerable accept
ance, most courts
recognize several exceptions to its applicability.
80

For instance, the crime
-
fraud
exception precludes the privilege from attaching to communications between
client and attorney when the client’s purpose is the “furtherance of a future
i
ntended crime or fraud.”
81

Similarly, the testamentary exception permits the
privilege to be pierced in judicial proceedings interpreting or validating a client’s
will if the confidential communications bears upon the issue in dispute among
will challenge
rs.
82

Another exception is the breach of duty exception, precluding
the application of the privilege to communications relating to allegations of
breach of duty by the attorney or the client.
83

Additional exceptions include the
joint client and attorney
attested document exceptions which are identified in
proposed Federal Rule of Evidence 503.
84





75
.

See id
. at 10.


76
.

See id
. at 22.


77
.

See id
. at 35 (citing Swindler & Berlin v. United States, 524 U.S. 399 (1998)). A will contest is an
exception to the privilege surviving the death of the client.
See id
.


78
.

See i
d
. at 34.


79
.

Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).


80
.

See generally

Paul A. Gordon,
Evidence/Professional Responsibility

Life After Death: The
Attorney
-
Client Privilege

Swidler & Berlin v. United States
, 72
T
EMP
.

L.

R
EV
.

493, 501 (1999
) (discussing the
exceptions to the attorney
-
client privilege).


81
.

Id
. (citing
M
C
C
ORMICK ON
E
VIDENCE

§ 93, at 130 (John William Strong ed., 4th ed. 1992)).


82
.

See id
. at 502.


83
.

See id
.


84
.

See id
.

12

TEXAS TECH LAW REVIEW

[Vol. 31:1225


The attorney
-
client privilege, which limits fact
-
finding and discovery, has
been criticized and challenged throughout its development.
85

As early as 1827,
criti
cs opposing the privilege argued that it only protected the guilty.
86

An
innocent party would have nothing to fear from the disclosure of attorney
-
client
conversations.
87

Because this privilege has a direct effect on the search for truth,
federal courts
have narrowly construed the privilege.
88

Consequently, the party
asserting the privilege bears the burden of establishing the elements of the
privilege.
89

Further, federal courts originally denied privileged status to
communications in which the client f
ailed to maintain confidentiality and in
instances when the attorney waived the client’s privilege.
90

A third party’s access
to confidential communications could also result in waiver insofar as the third
party could testify to such communications.
91

In
addition, the privilege may be
implicitly waived if the client seeks to use it as a shield and sword.
92

Finally, if the
client attempts to use the privilege to “prejudice his opponent’s case or to
disclose some selected communications for self
-
serving pur
poses,” then fairness
requires a finding that the privilege has been waived.
93

Federal courts typically embrace the common law approach to the attorney
-
client privilege.
94

The federal common law approach to the attorney
-
client
privilege is stated as follo
ws:

(1) Where legal advice of any kind is sought (2) from a professional legal
adviser in his capacity as such, (3) the communications relating to that purpose,
(4) made in confidence (5) by the client, (6) are at this instance permanently
pr
otected (7) from disclosure by himself or by the legal adviser, (8) unless the
protection be waived.
95

Using this definition for the purpose of evaluating the application of privilege to
modern technology, the focus will be on the requirement

that communications
be (1) made in confidence and (2) the question of waiver.


III.

D
EFINING
C
ONFIDENTIAL
C
OMMUNICATION






85
.

See generally

Clint Langer,
Evidence

The Attor
ney
-
Client Privilege: Nearly Breached, Swidler &
Berlin v. United States
, 34
L
AND
&

W
ATER
L.

R
EV
.

479, 480
-
81 (1999).


86
.

See id
. at 482.


87
.

See id
. (citing
8

J.

W
IGMORE
,

E
VIDENCE

§ 2291 (McNaughton rev. 1961)).


88
.

See

Weil v. Investment/Indicators Re
search & Management, Inc., 647 F.2d 18, 24 (9th Cir. 1981).


89
.

See

In re

Horowitz, 482 F.2d 72, 82 (2d Cir. 1973) (citing United States v. Kovel, 296 F.2d 918,
923 (2d Cir. 1961)).


90
.

See

Hydraflow, Inc. v. Enidine, Inc., 145 F.R.D. 626, 636 (W.D.N.Y.
1993).


91
.

See

Suburban Sew’ N Sweep, Inc. v. Swiss
-
Bernina, Inc., 91 F.R.D. 254, 257
-
58 (N.D. Ill. 1981).


92
.

See

United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991) (indicating that the privilege
should not be abused).


93
.

Id
.


94
.

See

Gord
on,
supra

note 80, at 506
-
07.


95
.

Admiral Ins. Co. v. United States Dist. Court of Ariz., 881 F.2d 1486, 1492 (9th Cir. 1989) (citing
In re

Fischel, 557 F.2d 209, 211 (9th Cir. 1977)).

2000]

PLAYING I SPY WITH CLIENT

CONFIDENCES

13


Confidential communications can be made in many different manners;
however, the co
nfidentiality of a communication is determined by the method of
the communication and the intent of the communicating parties.
96

Additionally,
protection of confidential communications often begins with Constitutional
protection for persons, houses, paper
s, and effects.
97


A. The Fourth Amendment






96
.

See

infra

Part III.B
-
D.


97
.

See

U.

S.

C
ONST
.

amend. IV.

14

TEXAS TECH LAW REVIEW

[Vol. 31:1225


The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violate
d, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
98

The United States Supreme Court first applied the Fourt
h Amendment to
the “search or seizure” of conversation in 1928.
99

In
Olmstead v. United States
,
the Supreme Court held that government wiretapping of a bootlegger’s
conversation was not a violation of the Fourth Amendment.
100

Basing its opinion
on proper
ty principles, the court held that because the government had not
trespassed, physically searched, or seized anything, no violation of the Fourth
Amendment occurred.
101

In
Katz v. United States
, however, the Supreme Court departed from the
Olmstead

approac
h.
102

In
Katz
, the government placed an electronic recording
and listening device on a public phone booth to record the defendant’s illegal
conduct.
103

Under the
Olmstead

approach, the recording of the conversation
would clearly be admissible.
104

Howeve
r, in
Katz
, the Court adopted a
“reasonable expectation of privacy” test.
105

Based on this standard, the court
concluded that the agents were required to have a warrant.
106

Because they did
not, the search was deemed to be illegal, and the evidence was i
nadmissible.
107


B. Title III of the Omnibus Crime Control and Safe Streets Act of 1968






98
.

Id
.


99
.

See generally

Olmstead v. United States, 277 U.S. 438 (1928) (applying the Fourth Amendment to
a wire tapping case).


100
.

See id
. at 466.


101
.

See id
.


102
.

389 U.S. 347, 353 (1967).


103
.

See id
. at 348.


104
.

See

Olmstead
, 277 U.S. at 464
-
66.


10
5
.

Katz
, 389 U.S. at 353.


106
.

See id
. at 359.


107
.

See id
.

2000]

PLAYING I SPY WITH CLIENT

CONFIDENCES

15


In response to
Katz
, Congress passed Title III of the Omnibus Crime
Control and Safe

Streets Act of 1968 (“Title III”).
108

The statute specifically
prohibited unwarranted wiretapping and electronic surveillance and required law
enforcement personnel to obtain a warrant before intercepting oral or wire
communications.
109

Although the statu
te’s purpose was to limit the government’s
interception of confidential communication, the broad language seemingly
applied to the public at large.
110

Title III preempted all state laws related to the
issuance of search warrants that authorized eavesdropp
ing.
111

Title III was
intended to protect wire and oral communications from illegal interception.
112

Other legislation maintained the privileged nature of wrongfully intercepted
communication.
113

Title III and other evidentiary and constitutional protect
ions form the basis
for maintaining the attorney
-
client privilege for conversations transmitted by a
traditional, land
-
line, wired telephone.
114

With modern technology, these types
of telephone calls are not at significant risk of being overheard by other
s.
Intentional interception of traditional telephone conversation is possible only
with special wiretapping equipment.
115

Under Title III, possession of wiretapping
equipment by individuals other than law enforcement personnel is illegal.
116

Therefore,
with Title III protections in place, traditional telephone
conversations were unquestionably confidential.
117

However, technology continued to create challenges to the question of
confidentiality. Title III protection specifically protected wire and oral
communications.
118

It did not address protection of wireless or cordless
communications.
119


C. Wireless Communications






108
.

See

18 U.S.C. §§ 2510
-
2520 (1994).


109
.

See

18 U.S.C. §§ 2510
-
2522.


110
.

See

18 U.S.C. §§ 2510
-
2516.


111
.

See

18 U.S.C. § 2516(2).


112
.

See

Omnibus Crime Control and Safe Streets Act o
f 1968, Pub. L. No. 90
-
351, 1968
U.S.C.C.A.N. 2177.


113
.

See

18 U.S.C. § 2517(4).


114
.

See

18 U.S.C. §§ 2510
-
2522.


115
.

See

Thomas F. O’Neil et al.,
Detours on the Information Superhighway; The Erosion of
Evidentiary Privileges in Cyberspace and Beyond
,

507
P
RAC
.

L.

I
NST
.

P
AT
.,

C
OPYRIGHTS
,

T
RADEMARKS
,

AND
L
ITERACY
P
ROP
.

C
OURSE
H
ANDBOOK
S
ERIES

329, 335 (1997).


116
.

See

18 U.S.C. § 2512.


117
.

See

18 U.S.C. §§ 2510
-
2522.


118
.

See id
.


119
.

See id
.

16

TEXAS TECH LAW REVIEW

[Vol. 31:1225


The first privacy case related to the use of cordless telephones was decided
in 1970.
120

Inter
estingly, the case is probably less known for its legal issues than
for the notoriety of the historical figure involved: Jimmy Hoffa.
121

In
Hoffa
, the
government used conversations between Hoffa, his co
-
defendants, and the
defense attorneys as evidence i
n his criminal trial.
122

The FBI monitored
conversations transmitted using F.M. radio signals.
123

Finding that the
communications were not private, the court held that “[s]urely, there was no
expectation of privacy as to the Hoffa calls in Detroit which
were exposed to
everyone in that area who possessed a F.M. radio receiver or another
automobile telephone tuned in to the same channel.”
124

The court did not find
relevance in the subject matter of the calls or the parties to the calls because no
party ha
d a reasonable expectation of privacy.
125

In 1973, the Ninth Circuit reached a similar result in
United States v.
Hall
.
126

In
Hall
, the defendants used mobile telephones to discuss illegal
marijuana distribution activities.
127

A radio listener unintentio
nally overheard the
conversations and reported them to the police.
128

The court was required to
address Title III, which seemed to make intercepting or divulging wire or radio
communications illegal.
129

The defendants argued for suppression of the
interc
epted conversations because they were received in violation of Title III.
130

The court’s first challenge in
Hall

was to determine whether the
conversations were “oral” or “wire” communications.
131

Under
Katz v. United
States
, “oral” conversations required

a reasonable expectation of privacy.
132

However, “wire” conversations required no such expectation.
133

If any wire,
cable or other similar connection was used to transmit the conversation, the
interception was illegal.
134

The case presented an interesti
ng challenge because some defendants
communicated from mobile phone to land
-
line telephones; others
communicated using wireless mobile
-
to
-
mobile phones.
135

The court determined
that mobile phone to land
-
line telephone conversations were protected because
of their use of “wire” connections.
136

However, the court characterized the




120
.

See

United States v. Hoffa, 436 F.2d 1243, 1246 (7t
h Cir. 1970).


121
.

See id
. at 1246
-
47.


122
.

See id
.


123
.

See id
.


124
.

Id
. at 1247.


125
.

See id
.


126
.

488 F.2d 193 (9th Cir. 1973),
superseded by statute

18 U.S.C. § 2511(1)(a) (1996).


127
.

See id
. at 195.


128
.

See id
.


129
.

See

18 U.S.C. §§ 2510
-
22

(1994);
Hall
, 488 F.2d at 196
-
98.


130
.

See

Hall
, 488 F.2d at 194.


131
.

See id
. at 196.


132
.

389 U.S. 347, 353 (1967).


133
.

See

Hall
, 488 F.2d at 196.


134
.

See id
.


135
.

See id
. at 197
-
98.


136
.

See id
. at 197.

2000]

PLAYING I SPY WITH CLIENT

CONFIDENCES

17


mobile
-
to
-
mobile phone conversations as “more analogous to carrying on an oral
communication in a loud voice or with a megaphone than it is to the privacy
afforded by a wire.”
137


The court found that these users had “orally”
communicated and therefore had no reasonable expectation of privacy when
making mobile
-
to
-
mobile phone calls.
138





137
.

Id
. at 196.


138
.

See id
. at 198.

18

TEXAS TECH LAW REVIEW

[Vol. 31:1225


Subsequent courts applied even a broader rationale, holding that radio
communications, includin
g mobile and cordless telephone conversations, were
not privileged because they lacked any reasonable expectation of privacy.
139


D. Cellular Communications


In 1981, the Federal Communication Commission (FCC) authoriz
ed
cellular communications.
140

Similar to mobile phone and cordless phone
transmissions, cellular phones utilize radio waves to transmit conversations.
141

Because of the use of radio waves for transmission, it was not surprising that the
issue of confide
ntiality and the reasonable expectation of privacy for
communication using cellular phones was quickly raised.

Several states immediately determined that because of the “interceptability”
of cellular communications, conversations transmitted over cellular
phones
could not reasonably be considered to be private.
142

The issue of attorney
-
client
privilege and cellular communications was specifically raised in
Edwards v.
Bardwell
.
143

However, the court determined that a civil eavesdropping case
required no ev
idence of the
contents

of the conversation, only a determination
of whether the conversation had been illegally recorded.
144

Thus, the court did
not address the question of whether the attorney
-
client privilege was established
or waived when conversations

between attorney and client were conducted over
a cellular phone.
145

Instead, the court simply sealed the tapes of the
conversations.
146


E. Facsimile Communications






139
.

See

Tyler v. Berodt, 877 F.2d 705, 706
-
07 (8th Cir. 1989); State v. Fata, 529 N.Y.S.2d 683, 686
-
87
(Co. Ct. 1988); State v. Howard, 679 P.2d 197, 204 (Kan. 1984); State v. Delaurier, 488 A.2d 688, 693 (R.I.
1985); State v. Smith, 438 N.W.2d 571, 578
(Wis. 1989).


140
.

See

Timothy R. Rabel,
The Electronic Communications and Privacy Act: Discriminatory
Treatment for Similar Technology, Cutting the Cord of Privacy
, 23
J.

M
ARSHALL
L.

R
EV
.

661, 665
-
66 (1990).


141
.

See

William P. Matthews,
Encoded Confide
nces: Electronic Mail, the Internet, and the Attorney
-
Client Privilege
, 45
U.

K
AN
.

L.

R
EV
.

273, 292 (1996).


142
.

See

Edwards v. Bardwell, 632 F. Supp. 584, 589 (M.D. La. 1986); Salmon v. State, 426 S.E.2d
160, 162 (Ga. Ct. App. 1992),
superseded by statu
te

18 U.S.C. 2511(1)(a) (1996); State v. Wilson, 554 N.E.2d
545, 552 (Ill. App. Ct. 1990).


143
.

Edwards
, 632 F. Supp. at 588
-
89.


144
.

See id
.


145
.

See id
.


146
.

See id
. at 590.

2000]

PLAYING I SPY WITH CLIENT

CONFIDENCES

19


The facsimile (hereinafter “fax”) machine revol
utionized many aspects of
the legal profession.
147

Litigators could correspond almost instantly to opposing
counsel, sending and receiving motions, orders, petitions, answers and other
correspondence.
148

Corporate clients could quickly review contracts a
nd provide
immediate modifications.
149

Even courts began to accept documents by fax and
utilize the fax machine to correspond with attorneys.
150

However, the use of the
fax machine in legal practice has not been without certain privilege
-
related
challeng
es.
151

The attorney
-
client privilege issues that arise in fax situations are similar to
those that arise in the context of other attorney
-
client communications.
152

The
“reasonable expectation of privacy” requirement is not raised because the
electronic si
gnal sent and received by fax machines over a traditional “wired”
network is not easily intercepted.
153

Even if intercepted, data transfers are
protected by the Electronic Communications Privacy Act of 1986 which will be
discussed in greater detail in a l
ater section of this article.
154

In most cases,
“waiver” becomes the primary issue when the attorney
-
client privilege is
challenged in relation to fax communications.
155

For example, if the document is
addressed to
co
-
counsel
, but is inadvertently sent t
o
opposing

counsel

(i.e. by
dialing an incorrect number), the privilege may be waived.
156

Federal courts
follow one of three waiver theories in inadvertent disclosure cases: (1) the “strict
responsibility” approach, (2) the “balancing test” approach, and
(3) the “no
waiver” approach.
157

These approaches will be discussed in the following section.


IV.

W
AIVER OF THE
A
TTORNEY
-
C
LIENT
P
RIVILEGE






147
.

See generally

Patricia Bordman,
Telefacsimile Documents: A Survey of
Uses in the Legal Setting
,
36
W
AYNE
L.

R
EV
.

1361 (1990) (stating how the legal community has become dependant on the use of fax
machines).


148
.

See id
.


149
.

See id
.


150
.

See, e.g.
, 8th Tex. App. (El Paso) Loc. R. 9.1 (visited Mar. 3, 2000) <http://www.8
thcoa.
courts.state.tx.us/Rules.pdf>.


151
.

See id
.


152
.

See, e.g.
,
F
ED
.

R.

E
VID
.

501;
B
LACK

S
L
AW
D
ICTIONARY

298 (6th ed. 1994).


153
.

See

Bordman,
supra

note 147, at 1361
-
63 (facsimile transmissions are transmissions between two
machines on a common fre
quency for data transfer, and data is typically transmitted over landlines).


154
.

See

18 U.S.C. §§ 2510
-
2521 (1994);
infra

discussion Part V.


155
.

See, e.g.
, Better Gov’t Bureau, Inc. v. McGraw (
In re

Allen), 106 F.3d 582, 600 (4th Cir. 1997).


156
.

See
id
.


157
.

See, e.g.
,
In re

Grand Jury Investigation, 142 F.R.D. 276, 278 (M.D.N.C. 1992).

20

TEXAS TECH LAW REVIEW

[Vol. 31:1225


There are three basic approaches to waiver of the attorney
-
client privilege.
158


Wigmore’s definition of the attorney
-
client privilege is perhaps the most widely
-
cited and accepted example of the “strict responsibility” approach.
159

Under the
strict responsibility approach, any inadvertent disclosure of privilege
d materials
results in waiver.
160

Although the federal courts have not decided a fax disclosure
case using this approach, other cases illustrate the rule’s rather harsh results.
161

In
Carter v. Gibbs
, the court held that the government waived its attorney
-
client privilege when it attached a privileged memo to a motion.
162

The court
held the inadvertent disclosure to be “irrelevant,” holding instead that “[g]ranting
the motion [to return the document] would do no more than seal the bag from
which the cat h
as already escaped.”
163

The government “voluntarily” attached the
memo, and by doing so, waived the attorney
-
client privilege.
164

Likewise, in
In re
Sealed Case
, the D.C. Circuit held that inadvertent disclosure of information to a
government auditor res
ulted in waiver.
165

The court refused to apply any form of
balancing test, holding that it would “grant no greater protection to those who
assert the privilege than their own precautions warrant.”
166

In these types of
restrictive jurisdictions, courts ha
ve taken a very simple approach

attorney
-
client
privilege is based on protecting confidential communications and once the
confidentiality has been destroyed, the foundation of the privilege is gone.
167

A number of courts determined that this approach was t
oo harsh.
168

As an
alternative, these courts adopted a case
-
by
-
case balancing approach.
169

This
approach applied a balancing test that required the courts to make case
-
by
-
case
determinations of waiver based on several factors.
170

In
In re Grand Jury
Pr
oceedings
, the court listed five factors that should be considered in
determining whether the circumstances of the inadvertent disclosure warrant
waiver of the attorney
-
client privilege.
171

The factors are: (1) the reasonableness
of the precautions taken

to prevent inadvertent disclosure; (2) number of
inadvertent disclosures; (3) extent of disclosure; (4) the delay between the
disclosures and the measures taken to rectify disclosure; and (5) the overriding




158
.

See

In re Allen
, 106 F.3d at 600.


159
.

See id
.


160
.

See

International Digital Sys. Corp. v. Digital Equip. Corp., 120 F.R.D. 445, 450 (D. Mass. 1988).


161
.

S
ee

Carter v. Gibbs, 909 F.2d 1450, 1451 (1990).


162
.

See id
.


163
.

Id
.


164
.

Id
.


165
.

877 F.2d 976, 980 (D.C. Cir. 1989).


166
.

Id
. at 980.


167
.

See

International Digital Sys. Corp. v. Digital Equip. Corp., 120 F.R.D. 445, 449 (D. Mass. 1988).


168
.

See

generally

In re

Grand Jury Investigation, 142 F.R.D. 276, 278 (M.D.N.C. 1992) (stating that a
multi
-
factor test for determining if a waiver exists is the proper rule, rejecting the idea that an inadvertent
disclosure always causes a waiver).


169
.

See id
.


170
.

See id
.


171
.

See id
. at 278
-
79.

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21


issues of justice and fairness.
172

The Fifth Ci
rcuit affirmed this balancing
approach in
Alldread v. City of Grenada
.
173





172
.

See id
.


173
.

988 F.2d 1425, 1433
-
35 (5th Cir. 1993) (citing Hartford Fire Ins. Co. v. Garvey, 109 F.R.D. 323,
332 (N.D. Cal. 1985)).

22

TEXAS TECH LAW REVIEW

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The least restrictive jurisdictions have adopted a “no waiver” approach.
174

These courts hold that an inadvertent disclosure will not waive the attorney
-
client
privilege because wa
iver requires an intentional relinquishment of a known
right.
175

Inadvertent disclosure cannot be intentional, therefore the privilege is
not waived.
176

Other courts have taken a “no waiver” approach unless there are
special circumstances.
177

In
Mandenh
all v. Barber
-
Green
, the court held that no
waiver occurred when one party left certain privileged documents in a file
produced for the opposing party.
178

The court rejected Wigmore’s strict
approach, finding that “the better
-
reasoned rule is that mere in
advertent
production does not waive the privilege.”
179

The Ninth Circuit Court of Appeals
also embraced this approach.
180


V.

T
HE
E
LECTRONIC
C
OMMUNICATIONS
P
RIVACY
A
CT OF
1986

AND THE
1994

A
MENDMENTS


Recognizing the dramatic changes in communication technology, Congress
amended Title III in 1986 to provide privacy for wireless communications.
181

The Electronic Communications Privacy Act of 1986 (ECPA) was designed to
“update and clarify Federal privacy protections and standards.”
182

The act
prohibits “interception” of wire, oral or electronic communication.
183

Under the
new law, “electronic communication” included electronic (data) and cellular
communications.
184

EC
PA specifically addressed the issue of privileged
communications, stating: “[n]o otherwise privileged wire, oral, or electronic
communication intercepted in accordance with, or in violation of, the provisions
of this chapter shall lose its privileged char
acter.”
185

However, it is important to
note that protection for cordless phone conversations was specifically left out of
the 1986 act.
186





174
.

See generally

International Sys. Corp. v. Digital Equip. Corp., 120 F.
R.D. 445 (D. Mass. 1988)
(stating that an inadvertent disclosure always cause a waiver).


175
.

See id
.


176
.

See id
.


177
.

See

Mendenhall v. Barber
-
Greene Co., 531 F. Supp. 951, 955 (N.D. Ill. 1982).


178
.

Id
.


179
.

Id
. at 954.


180
.

See

United States v. Z
olin, 809 F.2d 1411, 1417 (9th Cir. 1987),
aff’d in part and vacated in part
,
491 U.S. 554 (1991).


181
.

See

18 U.S.C. §§ 2510
-
2521 (1986).


182
.

S. Rep. No. 99
-
541, 99th Cong., 2d. Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 3555.


183
.

See id
.


184
.

See

18 U.S.C. §§ 2510(1), 2511(4)(b)(ii); S. Rep. No. 99
-
541, 99th Cong., 2d. Sess. (1986),
reprinted in 1986 U.S.C.C.A.N. 3555.


185
.

18 U.S.C. § 2517(4).


186
.

See

18 U.S.C. § 2510(12); Pub. L. tit. II, § 202 (a)(1) (1994). The act specifically provided th
at
“electronic communication . . . does not include . . . the radio portion of a cordless telephone communication
that is transmitted between the cordless telephone handset and the base unit.” Pub. L. tit. II, § 202(a)(1)
(1994).

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23


In
United States v. Smith
, the Fifth Circuit recognized that technological
advances required adoption of a case
-
by
-
case approach to determining privilege
under the Fourth Amendment.
187

Although the Fifth Circuit implied its
willingness to provide more favorable results to cordless phone users, the case
-
by
-
case analysis did not necessarily result in privilege status.
18
8

Cordless
telephone conversations remained without a guarantee of privilege until
Congress amended the ECPA in 1994 to specifically protect conversations over
cordless phones.
189


VI.

E
-
M
AIL
C
OMMUNICATIONS AND TH
E
A
TTORNEY
-
C
LIENT
P
RIVILEGE


Thirty years ago, the concept of electronic mail (hereinafter “e
-
mail”) was
virtually unknown to the general public. Yet, estimates suggest that over sixty
billion messages will be sent this year b
y forty million e
-
mail users.
190

Lawyers
have also begun to utilize e
-
mail for client
-
related communication.
191

In fact, a
1997 survey by the ABA’s legal technology research center showed that sixty
-
four percent of responding small law firms reported usi
ng the Internet in 1997,
up from thirty
-
eight percent just one year earlier.
192

In this survey, forty
-
one
percent reported using the Internet to communicate with clients.
193

Although
many users do not understand the technological intricacies of e
-
mail, t
he concept
has become popular with the legal community for many reasons.





187
.

978 F.2d 171, 173 (
5th Cir. 1992). Note that
Smith

presented a Fourth Amendment challenge,
whereas prior cases presented evidentiary challenges.
See id
. The Fifth Circuit did not specifically overrule the
evidentiary analysis cases, but rather, began a shift in policy tow
ards cordless phones.
See id
.


188
.

See id
. at 181.


189
.

See

18 U.S.C. § 2510(1)
-
(2) (1994).


190
.

See

William J. Cook,
Hypertext Bar Groups Need to Rethink Views of Privacy on the Internet
,
C
HI
.

L
AW
.
, Jan. 1998, at 63.


191
.

See

ABA, Legal Technology Res
ources Center,
1997 Small Firm Technology Survey

(1997).


192
.

See id
.


193
.

See id
.

24

TEXAS TECH LAW REVIEW

[Vol. 31:1225


E
-
mail allows users to communicate with each other by sending data files
between computers.
194

Like traditional postal mail, e
-
mail users have
“mailboxes” that store mail waiting to

be read by the owner.
195

If the mailbox is
password
-
protected, only the owner or those in with possession of the password
can access the mailbox’s contents.
196

Every e
-
mail user is assigned a unique
“address” used to direct messages to their designated
electronic mailbox.
197

This
same address is typically used to identify the sender of an e
-
mail message which
functions much like the “return address” located in the left
-
hand corner of a
traditional postal envelope.
198

Similar to the address on an envelo
pe, e
-
mail
addresses are designed to ensure messages are not directed to the wrong user.
199

More importantly to the legal profession, many aspects of e
-
mail make its
use more efficient than traditional postal mail.
200

First, the cost for storing
electroni
c communications is minimal and more efficient

unlike bulky file
folders.
201

Electronic messaging reduces expenses related to postage, stationary,
envelopes, labels, printing, copying, and handling.
202

Once a computer system is
in place, e
-
mail is virtua
lly free for users.
203

Lawyers and clients can easily store,
search, retrieve, and edit information within e
-
mail files and records.
204

Copies of
e
-
mail communications, including “blind” copies, can easily be sent or forwarded
to multiple recipients.
205


In some cases, the use of e
-
mail facilitates more
effective record
-
keeping than traditional telephone communications.
206

The
traditional “paper trail” documenting a transaction is supplemented or replaced
by a series of electronic files.
207

Some e
-
mail
programs provide users with the
ability to receive a “confirmation” when an e
-
mail is successfully delivered and
also provide a report on when the message is accessed, or “opened,” by the
recipient.
208

These capabilities function in a manner similar to th
e “certified,
return receipt requested” options provided by traditional postal service.
209





194
.

See

Jonathan Rose,
E
-
Mail Security Risks: Taking Hacks at the Attorney
-
Client Privilege
, 23
R
UTGERS
C
OMPUTER
&

T
ECH
.

L.J.

179 (1997).


195
.

See

Matthews,
supra

note

141, at 274.


196
.

See id
.


197
.

See id
.


198
.

See id
.


199
.

See id
.


200
.

See

Flaming,
supra

note 15, at 183.


201
.

See generally

John Montana,
Legal Issues in EDI
, 30
R
EC
.

M
GMT
.

Q.

39 (1996) (stating that the
elimination of paper at every stage of recor
d keeping saves money because paper cost’s are eliminated,
distribution, storage, and transcription costs are reduced).


202
.

See id
.


203
.

See id
.


204
.

See

Flaming,
supra

note 15, at 183.


205
.

See

Montana,
supra

note 201, at 39.


206
.

See id
.


207
.

See

Will Morrow,
Is the Internet Participating in Securities Fraud?: Harsh Realities in the Public
Domain
, 72
T
UL
L.

R
EV
.

2203, 2209 (1998).


208
.

See

Sanjiv N. Singh,
Cyberspace: A New Frontier for Fighting Words
, 25
R
UTGERS
C
OMPUTER
&

T
ECH
.

L.J.

283, 323 n.
132 (1999).


209
.

See id
.

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Finally, one of the most useful advantages of e
-
mail is the capability of attaching
additional documents and files to the e
-
mail message.
210


A. Out of the Mailbox
, into Electronic Oblivion, and Back Again






210
.

See

Montana,
supra

note 201, at 39.

26

TEXAS TECH LAW REVIEW

[Vol. 31:1225


Unlike traditional mail, when an attorney sends an electronic message the
original message is not actually “sent.”
211

Typically, the ori
ginal message is stored
on the sender’s computer hard drive.
212

The sender’s computer generates a copy
of the original message and sends the copy to another computer called a “file
server.”
213

The file server, in turn, stores the copy that it receives, g
enerates a
new copy of the message, and sends that copy across a wired or wireless network
to another file server.
214

These file servers are also known as “routers” because
they “route” e
-
mail across a network.
215

“Depending on the computer network
struc
ture, the e
-
mail message may go through a number of file servers, with each
one storing its own copy and making new copies to forward to the intended
recipient.”
216

Most users fail to realize that “deleting” a message from the
sender’s computer eliminates

the copy of the original message, but not any
subsequent copies along the network.
217

Additional copies may be stored for an indefinite time period on each of
the file servers through which the message passed.
218

In addition, to allow more
efficient trav
el along the network, e
-
mail messages are frequently split up and
sent in separate “packets.”
219

Each “packet” will take its own route before being
reassembled at its final destination.
220

Therefore, copies or pieces of e
-
mail
messages can be spread amon
g many file servers across a wide
-
ranging network.
221

Although physically and economically impossible, an appropriate
comparison would be to a postal system that opened, copied, and stored every
letter as it passed through each post office or delivery stat
ion along the letter’s
route. In addition to the astronomical expense, such a system would no longer
provide for confidential communication, and use of the system to transfer
information would constitute a waiver of the attorney
-
client privilege. This
ex
ample illustrates the issues related to using e
-
mail for communicating
confidential information and the problems created under the definitions for
attorney
-
client privilege.


B. Types of E
-
Mail Systems






211
.

See

Olmsted,
supra

note 23, at 524.


212
.

See id
.


213
.

See id
.


214
.

See id
.


215
.

See

Todd H. Flaming & Benson K. Friedman,
1998 Survey of Legal Technology
, 23
S.

I
LL
.

U.

L.J.

1183
, 1196 (1999).


216
.

Id
.


217
.

See id
.


218
.

See

Olmsted,
supra

note 23, at 524. Note that most file servers do not have adequate space to hold
messages for any length of time, but could theoretically do so.


219
.

See

O’Neil et al.,
supra

note 115, at 346.


220
.

See id
.


221
.

See

Olmsted,
supra

note 23, at 524.

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27


E
-
mail is tran
smitted using one of various types of systems. Private
networks, local area networks, semi
-
private networks, commercial services and
the Internet all provide a method to send and receive e
-
mail.
222

An e
-
mail
system’s security level depends upon the type
of system the sender and recipient
use.
223

Typically, e
-
mail transmissions within private or local area networks are
accessible only to users of that particular system.
224

Under this type of system,
also known as a “closed system,” e
-
mail transmissions go

directly from one
computer to another computer within the closed network.
225

Original and copied
e
-
mail messages on a closed, private system are accessible only by the private
system’s users.
226

Assuming that security issues are addressed in a manner si
milar
to traditional client information, a closed system presents virtually no issues
related to confidentiality and waiver.
227

System users have a reasonable
expectation of privacy for these communications.
228

The federal courts have
affirmed this posit
ion.
229

However, the presumption of privacy may be limited in
some circumstances.
230

For example, one federal court ruled that an employee
did not have a reasonable expectation of privacy for personal communications in
company e
-
mail.
231





222
.

See

Rose,
supra

note 194, at 179.


223
.

See id
.


224
.

See

Cook,
supra

note 190, at 63.


225
.

See id
.


226
.

See id
.


227
.

See

Matthews,
supra

note 141, at 275.


228
.

See

United States v. Keyston
e Sanitation Co., 903 F. Supp. 803 (M.D. Pa. 1995).


229
.

See id
.


230
.

See

Smyth v. Pillsbury Co., 914 F. Supp. 97 (E.D. Pa. 1996).


231
.

See id
.;
see also
, Castano v. American Tobacco Co., 896 F. Supp. 590 (E.D. La. 1995) (holding
documents that the comp
any asserted were privileged but were available over the Internet through a state
library were in the public domain).

28

TEXAS TECH LAW REVIEW

[Vol. 31:1225


Semi
-
private an
d commercial service providers supply the second type of e
-
mail service.
232

These services charge fees to provide access to a proprietary
network.
233

E
-
mail is sent from the user’s computer to the service provider’s file
server.
234

These messages remain

on the service provider’s network until another
member retrieves the message from the network.
235

Because these service
providers typically require members to establish a unique password, users are
assured that only the intended recipient or someone with

that member’s
password can access the message.
236

Copies of the original message are made and
stored on the service provider’s file server; however, because of the secured
access to the messages, users of these systems have the requisite reasonable
expec
tation of privacy required to maintain the attorney
-
client privilege.
237

The third type of e
-
mail network uses the Internet to route messages from
the sender to one or more recipients.
238

The Internet provides access to a public
communication network that

links users through file servers throughout the
world.
239

Sending a message using file servers and network connections outside
of a secure system arguably eliminates the reasonable expectation of privacy
necessary to protect the attorney
-
client privilege
.
240

In a lawsuit challenging the
federal Communications Decency Act,
241

the court made a finding that “[u]nlike
postal mail, simple e
-
mail generally is not ‘sealed’ or secure, and can be accessed
or viewed on intermediate computers between the sender and

the recipient
(unless the message is encrypted).”
242

In addition, access to the communication
by someone other than the attorney or client may constitute a waiver of the
attorney
-
client privilege.
243

However, court treatment of unencrypted e
-
mail has not

been uniform.
244

A
military court recognized an expectation of privacy in an unencrypted e
-
mail
message for purposes of search and seizure issues.
245

In
United States v.
Maxwell
, the court discussed at length the reasonable expectation of privacy one
ma
y possess with regard to e
-
mail communications and compared and




232
.

See

Ben Delsa,
E
-
Mail and the Attorney
-
Client Privilege: Simple E
-
Mail in Confidence
, 59
L
A
.

L.

R
EV
.

935, 943 (1999).


233
.

See id
.


234
.

See id
. at 943
-
44.


235
.

See

Flaming,
supra

note 15, at 184.


236
.

See

Cook,
supra

note 190, at 63.


237
.

See

Delsa,
supra

note 232, at 944
-
45.


238
.

See

Matthews,
supra

note 141, at 278.


239
.

See id
. at 275.


240
.

See id
. at 277.


241
.

47 U.S.C. §
223(a)
-
(h) (1998).


242
.

American Civil Liberties Union v. Reno, 929 F. Supp. 824, 834 (E.D. Pa. 1996).


243
.

See generally

Evan R. Shirley,
Dilbert, Supermodels & Confidentiality of E
-
Mail Under Hawaii
Law
, 3
H
AW
.

B.J.

6 (1999) (discussing that, under fed
eral law, implied waiver of the attorney
-
client privilege is
the same for e
-
mail as for misdirected faxes).


244
.

See, e.g.
, U.S. v. Maxwell, 42 M.J. 568, 575
-
76 (U.S. Air Force Ct. Crim. App. 1995),
rev’d in part

45 M.J. 406 (C.A.A.F. 1996).


245
.

See id
.

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29


contrasted other available means.
246

For example, senders of first
-
class mail who
seal their message in an envelope addressed to another person can reasonably
expect the contents to remain co
nfidential.
247

On the other hand, individuals
sending e
-
mail, messages, or other information on the computer should
understand that the Fourth Amendment expectation of privacy diminishes
incrementally, and the more open the method of transmission, the les
s privacy
one can reasonably expect.
248





C. The Electronic Communications Privacy Act of 1986 and E
-
Mail


The most recent clarification of the issue of e
-
mail privilege is the EC
PA.
249

The ECPA’s broad coverage includes protection for all e
-
mail transmissions,
even those transmitted through the Internet.
250

Although the act acknowledges
that e
-
mail is copied by network file servers and routers, under the protection of
ECPA, the
content can not be viewed, used, or disseminated, except for specific
purposes authorized by the act, such as quality control.
251

Consequently,
although a systems manager could intercept an e
-
mail message under the pretext
of system maintenance, under ECP
A, a network provider’s employee may access
messages in the normal course of employment as needed to maintain and render
the service.
252

This limited form of access should not destroy the attorney
-
client
privilege.

In addition, ECPA addressed illegal inte
rception or monitoring of
communications.
253

Under the 1986 Act, intercepting e
-
mail without
authorization and unauthorized disclosure of e
-
mail communications is illegal.
254

Under § 2517(4), whether a message is intercepted “in accordance” with the Act
(such as under the provisions allowing service providers a limited right to
intercept e
-
mail) or in violation of it, otherwise privileged communications
remain privileged.
255

Stored e
-
mail is likewise protected by restrictions on
unauthorized disclosure a
nd use.
256


VII.

R
EGULATING
A
TTORNEY
C
OMMUNICATIONS





246
.

45 M.J. 406 (C.A.A.F. 1996).


247
.

See id
. at 417.


248
.

See id
.


249
.

See

18 U.S.C. §§ 2510
-
2522 (1994).


250
.

See

18 U.S.C. § 2510(12).


251
.

See

18 U.S.C. § 2511(2)(a)(i) (1998).


252
.

See id
.


253
.

See

18 U.S.C. § 2511.


254
.

See

Amy M. Fulmer S
tevenson,
Making a Wrong Turn on the Information Superhighway:
Electronic Mail, the Attorney
-
Client Privilege and Inadvertent Disclosure
, 26.
C
AP
.

U.

L.

R
EV
.

347, 352 (1997).


255
.

See

18 U.S.C. § 2517(4).


256
.

See

18 U.S.C. §§ 2701
-
2711 (1988).

30

TEXAS TECH LAW REVIEW

[Vol. 31:1225



Given the current status of federal law, the use of e
-
mail between attorney
and client arguably does not create a waiver of the attorney
-
client privileg
e where
the parties have a reasonable expectation of privacy.
257

In fact, a number of law
review articles, bar journals, and ethics opinions have come to this conclusion.
258




A. American Bar Association Ethics Opinions


The American Bar Association first addressed the issue of protecting
confidentiality when using on
-
line communications in a special report published
in 1986.
259

The ABA report concluded that an attorney should not communicate
confide
ntial matters over an electronic network without first being assured of the
reliability of the system in maintaining confidential communications “either
through bar approval or the lawyer’s own informed evaluation.”
260

The report
went on to recommend that

an attorney should not communicate confidential
matters “without being reasonably assured of the security of the system and
protection from inadvertent or intentional interception of information by
another.”
261

However, following adoption of ECPA and aft
er an extensive review
of the issue, the American Bar Association Standing Committee on Ethics and
Professional Responsibility issued a revised opinion on the use of e
-
mail for
client communications in 1999.
262

The current ethics opinion states,

A lawyer may transmit information relating to the representation of a client by
unencrypted e
-
mail sent over the Internet without violating the Model Rules of
Professional Conduct . . . because the mode of transmission affords a
reasonable expectation

of privacy from a technological and legal standpoint.
The same privacy accorded U.S. and commercial mail, land
-
line telephonic
transmissions, and facsimiles applies to Internet e
-
mail.
263





257
.

See

Delsa,
supra

note 232, at 944
-
45.


258
.

See

Alaska Bar Ass’n Op. 98
-
2 (1998); Ariz. Bar Op. 97
-
04 (1997); S.C. Ethics Op. 97*08 (1997);
N.C. Ethics Op. 215 (1995); Delsa,
supra

note 232, at 944
-
45; Shirley,
supra

note 243.


259
.

See

ABA Comm. on Lawyers’
Responsibility for Client Protection, Lawyers on Line: Ethical
Perspectives in the Use of Telecomputer Communication (1986) at 67.


260
.

Id
.


261
.

Id
.


262
.

See

ABA Comm. on Ethics and Professional Responsibility; Formal Op. No. 99
-
413 (1999).


263
.

Id
.

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31


Absent specific case law, this opinion has been ref
erenced in subsequent
bar opinions and commentary as the de
-
facto standard for attorney
-
client
communications utilizing e
-
mail.
264

The opinion specifically addressed the two
primary issues related to maintaining privilege: risk of interception and
reasona
ble expectation of privacy.
265

Regarding the risk of interception, the
opinion states that “[t]he Committee believes that e
-
mail communications,
including those sent unencrypted over the Internet, pose no greater risk of
interception or disclosure than ot
her modes of communication commonly relied
upon as having a reasonable expectation of privacy.”
266

The opinion also
supported the argument that e
-
mail correspondents have a reasonable
expectation of privacy for their communication.
267

Accordingly, attorn
eys and
clients using e
-
mail should receive the same level of legal protection as they
would receive when using telephone, fax, cellular, and other types of electronic
communication.
268

The opinion was very specific, stating “[t]he level of legal
protecti
on accorded e
-
mail transmissions, like that accorded other modes of
electronic communication, also supports the reasonableness of an expectation of
privacy for unencrypted e
-
mail transmissions.”
269

Responding to concerns about
the risk of disclosure relat
ed to the technological aspects of the e
-
mail delivery
system, the opinion characterized the risk as insignificant and relied on the
protection provided by the EPCA.
270


The risk of unauthorized interception and disclosure exist
s in every medium of
communication, including e
-
mail. It is not, however, reasonable to require that
a mode of communicating information must be avoided simply because
interception is technologically possible, especially when unauthorized
interception or d
issemination of the information is a violation of law.
271

The straight
-
forward language of the opinion appears to provide attorneys
with an open license to employ e
-
mail for client communication without being
concerned about issues related to

confidentiality or privilege.
272

The opinion
concludes that: “[B]ased upon current technology and law as we are informed of
it, that a lawyer sending confidential client information by unencrypted e
-
mail
does not violate Model Rule 1.6(a) in choosing th
at mode to communicate.”
273





264
.

See, e.g.
, Ill. St. Bar Ass’n 96
-
10 (1996) (regarding client communications via e
-
mail).


265
.

See id
.


266
.

Id
.


267
.

See id
.


268
.

See

ABA Formal Op. 99
-
413 (1999).


269
.

Ill. St. Bar Ass’n 96
-
10 (1996).


270
.

See id
.; 18 U.S.C. §§ 2510
-
2521 (1994).


271
.

Ill. St. Bar Ass’n 96
-
10 (1996).


272
.

See id
.


273
.

Id
.

32

TEXAS TECH LAW REVIEW

[Vol. 31:1225


In addition, the ABA’s Legal Ethics Committee had previously issued an
opinion that appears to apply to any concerns about misdirected e
-
mail
communications.
274

If an attorney receives materials that (1) appear to be
covered u
nder the attorney
-
client privilege, or (2) are otherwise confidential, and
(3) the communication was not intended for the receiving lawyer, then the lawyer
should (1) refrain from reviewing the materials, (2) notify the sending lawyer, and
(3) comply with
the directions of the sending lawyer.
275

In a more restrictive
opinion, the Committee determined that an attorney receiving an adverse party’s
confidential materials from someone who was not authorized to possess and
deliver the information should refrain

from reviewing the materials “any further
than is necessary to determine how appropriately to proceed,” should notify the
opposing counsel of the receiving attorney’s possession, and abide by the
opposing counsel’s directions regarding the disposition of
the materials.
276

If
counsel cannot agree on the disposition of the materials, the receiving attorney
may not use the information and must hold the materials until the court rules on
the matter.
277

Although both of these opinions preceded the widespread
use of e
-
mail, it appears that they would be applicable to misdirected or inadvertent e
-
mail messages.
278

Following these ethics advisory opinions, at least two courts have ruled that
an attorney could not use confidential information that was inadvertentl
y sent by
opposing counsel.
279


B. Overlooked Standards of Care Included in the ABA Opinion


Initial attention focused on the apparent broad approval and protection of
attorney
-
client e
-
mail privilege in the ABA opinion.
280

However, the strong,
cautionary language also included in the opinion is being overlooked in most
discussions regarding attorney
-
client e
-
mail communications.
281

In discussing
standards of care, the Committee stated
, “[t]he conclusions reached in this
opinion do not, however, diminish a lawyer’s obligation to consider with her
client the [1] sensitivity of the communication, [2] the costs of its disclosure, and
[3] the relative security of the contemplated medium of
communication.”
282

The committee considered that in certain circumstances, “[p]articularly
strong protective measures are warranted to guard against the disclosure of highly





274
.

See

ABA Comm. on Ethics & Professional Responsibility, Formal Op. 92
-
368 (1992) (discussing
inadvertent disclosure of confidential materials).


275
.

See id
.


276
.

ABA Comm. on Ethics & P
rofessional Responsibility, Formal Op. 94
-
382 (1994).


277
.

See id
.


278
.

See, e.g.
, ABA Comm. on Ethics & Professional Responsibility, Formal Op. 92
-
368 (1992)
(making specific reference to the use of e
-
mail in transmitting privileged or confidential mate
rials).


279
.

See

Resolution Trust Corp. v. First of Am. Bank, 868 F. Supp. 217 (W.D. Mich. 1994); American
Express v. Accuweather, Inc., 12
L
AW
.

M
AN
.

P
ROF
.

C
ONDUCT

243 (S.D.N.Y., 6
-
25
-
96).


280
.

See

ABA Comm. on Ethics & Professional Responsibility, Forma
l Op. 99
-
413 (1999).


281
.

See id
.


282
.

Id
.

2000]

PLAYING I SPY WITH CLIENT

CONFIDENCES

33


sensitive matters.”
283

In fact, the committee recognized the possible obligation
that “extraordinary measures” for protection are warranted:





283
.

Id
.

34

TEXAS TECH LAW REVIEW

[Vol. 31:1225


[W]hen the lawyer reasonably believes that confidential client information
being transmitted is so highly sensitive that
extraordinary measures

to protect
the transmission are warra
nted, the lawyer should consult the client as to
whether another mode of transmission, such as special messenger delivery, is
warranted. The lawyer then must follow the client’s instructions as to the mode
of transmission.
284

This clear, cau
tionary language should be considered an integral part of the
determination of the “reasonable care” standard required for maintaining and
protecting confidential client information.
285

Rather than providing an automatic
privilege protection for all attor
ney
-
client e
-
mail communications, the opinion
actually imposes an affirmative duty on the attorney to evaluate whether e
-
mail is
an appropriate method of communication.
286

Attorneys who fail to evaluate the
three factors specified in the opinion, (1) sens
itivity of the communication, (2)
costs of disclosure, and (3) security of the medium of communication, may be
surprised to find that challenges to privilege and malpractice liability still exist for
ill
-
advised use of e
-
mail.
287


C. State Bar Ethics Stan
dards


State bar ethics opinions are not uniform in their treatment of attorney
-
client e
-
mail communication.
288

One of the first state bar associations to address
the issue of attorney
-
client e
-
mail communication wa
s the South Carolina Bar.
289

In a 1995 opinion, the South Carolina Ethics Advisory Committee determined
that “unless certainty can be obtained regarding the confidentiality of
communications via electronic media, that representation of a client, or
commun
ication with a client, via electronic media, may violate Rule 1.6, absent
an express waiver by the client.”
290

The South Carolina opinion was followed in
1996 by an opinion of the Iowa Bar Association that advised: “sensitive material
must be encrypted

t
o avoid violation of Rule 4
-
101 [regarding client
confidentiality] . . . .”
291

The Iowa ruling was determined to be too restrictive and
was revised three months later to state:





284
.

Id
. (emphasis added);
see also

M
ODEL
R
ULES OF
P
ROFESSIONAL
C
ONDUCT

Rule 1.2(a)
(recognizing a lawyer’s duty to abide by a client’s decisions concerning the objectives of representation and the
me
ans by which they are to be pursued).


285
.

See

ABA Comm. on Ethics & Professional Responsibility, Formal Op. 99
-
413 (1999).


286
.

See id
.


287
.

See id
.


288
.

See
Ill. St. Bar Ass’n 96
-
10 (1996).


289
.

See

S.C. Ethics Advisory Op. 94
-
27 (1995).


290
.

S.C.
Ethics Advisory Op. 94
-
27 (1995). This opinion was substantially revised in 1997 to allow
unencrypted lawyer
-
client email communications.
See

S.C. Ethics Advisory Op. 97
-
08 (1997).


291
.

Iowa Formal Op. 95
-
30 (1996).

2000]

PLAYING I SPY WITH CLIENT

CONFIDENCES

35


[I]f sensitive material is to be transmitted via e
-
mail, the la
wyer must have
written acknowledgment by client of the risk of the violation of Rule 4
-
101 [i.e.
client confidentiality] and obtain consent for the communication via Internet or
non
-
secure Intranet or other forms of proprietary networks. Otherwise the
com
munication must be encrypted or protected by a password/firewall or other
generally accepted equivalent security.
292

Iowa and South Carolina were the only two jurisdictions that went as far as
requiring encryption of attorney
-
client e
-
mail co
mmunication.
293

Between 1996
and 1999, all other published bar association ethics opinions found that
attorneys may communicate with clients using ordinary, unencrypted email,
unless unusual circumstances dictated otherwise.
294

The Illinois Bar Associati
on
stated the reasoning most commonly followed:

because (1) the expectation of privacy for electronic mail is no less reasonable
that the expectation of privacy for ordinary telephone calls, and (2) the
unauthorized interception of an electro
nic message subject to the ECPA is
illegal, a lawyer does not violate Rule 1.6 by communicating with a client using
electronic mail services, including the Internet, without encryption. Nor is it
necessary, as some commentators have suggested, to seek spe
cific client
consent to the use of unencrypted email.
295





292
.

Id
.


293
.

See

S.C. Ethics Advis
ory Op. 97
-
08 (1997); Iowa Formal Op. 95
-
30 (1996).


294
.

See

N.C. Ethics Op. 215 (1995); Alaska Bar Ass’n Op. 98
-
2 (1998) (stating that attorneys must take
the same precautions recommended for cellular and cordless phone communications); Ariz. Bar Op. 97
-
04
(1997) (stating that caution must be used when communicating with clients about confidential matters using
e
-
mail over the Internet, encryption should be considered, but is not required, for confidential information,
e
-
mail should contain a cautionary
statement similar to the boilerplate language used on facsimile cover sheets);
Ill. St. Bar Ass’n Ethics Op. 96
-
10 (1997) (stating that unencrypted e
-
mail is allowed unless unusual
circumstances justify enhanced security); S.C. Ethics Op. 97
-
08 (1997) (sta
ting that encryption of e
-
mail is not
required); S.C. Ethics Op. 94
-
27 (1995); Vt. Bar Ass’n Op. 97
-
5 (1997); Ky. Bar Ass’n Op. E
-
403 (1998); N.D.
Bar Ass’n Op. 97
-
09 (1997); Tenn. Op. 98
-
A
-
650(a) (1998); Colo. Bar Ass’n Op. 90, Preservation of Client
Conf
idences in View of Modern Communications Technology (Nov. 14, 1992) (stating that attorneys must
exercise reasonable care in selecting the medium of communication to guard against compromising confidential
communications); Mass. Ethics Op. 94
-
5 (1994) (st
ating that cellular and cordless phone communications
should only be used with a scrambler for confidential communications unless the client consents); N.H. Ethics
Op. 1991
-
2/6 (1992); N.Y. City Ethics Op.1994
-
11 (1994) (stating that another party to cell
phone
communication must be warned at the outset of the risk of interception and the potential for the loss of the
attorney
-
client privilege); Iowa Ethics Opinion 97
-
01 (1997); Pa. Ethics Op. 97
-
130 (1997) (stating that a client’s
consent is needed but enc
ryption is not required unless e
-
mail includes particularly sensitive information); Mo.
Ethics Op. 990007 (1999) (stating that it is difficult to create a comprehensive consent form to cover all
concerns raised by e
-
mail, attorneys should discuss with clie
nts the risks associated with e
-
mail communication
and storage); D.C. Op. #281 (1998) (stating that transmission of confidential information by unencrypted
electronic mail allowed, but individual circumstances may require greater means of security).


295
.

Ill. St. Bar Ass’n 96
-
10 (1996).

36

TEXAS TECH LAW REVIEW

[Vol. 31:1225


However, it is important to note that the Illinois ethics opinion also
included cautionary language concerning particularly sensitive client
communications: “The committee recognizes
that there may be unusual
circumstances involving an extraordinarily sensitive matter that might require
enhanced security measures like encryption. These situations would, however,
be of the nature that ordinary telephones and other normal means of
commu
nication would also be deemed inadequate.”
296

Since the Illinois decision
in 1996, most state ethics bodies examining the issue of client communications
using electronic mail have avoided requiring encryption.
297

However, many of
the opinions include the

cautionary language that requires or suggests that the
attorney receive client consent prior to using e
-
mail for sensitive information.
298

Following the general trend, the two most restrictive jurisdictions, Iowa and
South Carolina, revised their previou
s opinions to also permit the use of
unencrypted e
-
mail unless special circumstances required enhanced security.
299

In general, it appears that many state bar opinions follow the ABA standard and
impose on the attorney an affirmative duty to evaluate whet
her e
-
mail is an
appropriate method of communication prior to using it for sensitive
communications.
300


D. Malpractice Risks


Violation of bar association ethics opinions may subject an attorney to
sanctions administered th
rough a bar association grievance process. In addition,
attorneys may also be subject to civil malpractice lawsuits for failure to protect
client confidentiality.
301





296
.

Id
.


297
.

See

N.C. Ethics Op. 215 (1995); Alaska Bar Ass’n Op. 98
-
2 (1998); Ariz. Bar Op. 97
-
04 (1997);
Ill. St. Bar Ass’n Ethics Op. 96
-
10 (1997); S.C. Ethics Op. 94
-
27 (1995); Vt. Bar Ass’n Op. 97
-
5 (1997); Ky. Bar

Ass’n Op. E
-
403 (1998); N.D. Bar Ass’n Op. 97
-
09 (1997); Tenn. Op. 98
-
A
-
650(a) (1998); Colo. Bar Ass’n
Op. 90, Preservation of Client Confidences in View of Modern Communications Technology (Nov. 14, 1992);
Mass. Ethics Op. 94
-
5 (1994); N.H. Ethics Op. 199
1
-
2/6 (1992); N.Y. City Ethics Op.1994
-
11 (1994); Iowa
Ethics Opinion 97
-
01 (1997); Pa. Ethics Op. 97
-
130 (1997); Mo. Ethics Op. 990007 (1999); D.C. Op. #281
(1998).


298
.

See supra

note 297.


299
.

See

Iowa Ethics Opinion 96
-
1 (1996); S.C. Ethics Op. 97
-
0
8 (1997).


300
.

See supra

note 297.


301
.

See

Daniel E. Orr,
Confidentiality in an Electronic World Using Encryption in Everyday Law
Practice
, (visited March 8, 1999) <http://www.abanet.org/lpm/newsletters/net2d/598orr.html>.

2000]

PLAYING I SPY WITH CLIENT

CONFIDENCES

37


Traditionally, malpractice claims are measured against the standard of
reasonable lawyer
s within a particular jurisdiction.
302

The question is whether the
language of the ABA or state bar association ethics opinions have created a
special standard of protection for e
-
mail communications. Based upon the ABA
opinion, it is unlikely that a law
yer will be required to use encryption or other
levels of security for non
-
confidential attorney
-
client communication.
303

In
addition, the Attorney’s Liability Assurance Society, a legal malpractice
underwriter for many of the large law firms in the Unite
d States, has taken a
stance on encryption identical to that of most state bar associations and the
ABA.
304

ALAS takes the position that the failure to encrypt communications
over the Internet does not waive the attorney
-
client privilege, nor does it crea
te
any ethical or liability exposure.
305

However, ALAS also recognized the
exception for using e
-
mail in matters so important that any threat of interception
must be avoided.
306

ALAS also considers the protections provided by ECPA an
important factor in
their e
-
mail policy: “The area is, therefore, susceptible to a
bright line rule: If the interception is criminal, the lawyer has not violated the
ethics rules, has not waived any privilege, and has not subjected herself to civil
liability.”
307

In support

of their opinion, ALAS notes that after seeing over 9,000
claims, not one has ever involved any situation where a third party has
intentionally and without authorization intercepted a law firm’s communication,
whether by stealing mail, intercepting a fax,

tapping a phone or “hacking” a
computer message.
308

However, some commentators have suggested that inadvertent disclosure
through a misdirected e
-
mail would almost certainly constitute a breach of legal
ethics, grounds for malpractice, or possibly a waive
r of attorney
-
client privilege.
309


Preventing inadvertent disclosure is therefore a compelling reason to encrypt or
take additional steps to secure communications.
310


VIII.

C
ONCLUSION






302
.

See

Dwain E. Fagerlund,
Legal Malpractice: The Locality Rule and Other Limitations of Standard
of Care: Should Rural and Metropolitan Lawyer be Held to the Same Standard of Care?
, 64
N.D.

L.

R
EV
.

661,
661 (1988).


303
.

See

ABA Comm. on Ethics & Professional Responsibility, Formal

Op. 99
-
413 (1999).


304
.

See

Brett R. Harris,
Counseling Clients on the Internet
, 583
P
RAC
.

L.

I
NST
.

P
AT
.,

C
OPYRIGHT
,

T
RADEMARKS
,

AND
L
ITERARY
P
ROP
.

C
OURSE
H
ANDBOOK
S
ERIES

95, 129
-
30 (1999).


305
.

See

W
ILLIAM
F
REIVOGEL
,

I
NTERNET
C
OMMUNICATIONS
-

P
ART
II,

A
L
ARGER
P
ERSPECTIVE
,

ALAS

L
OSS
P
REVENTION
J.

(ALAS, Chicago, Ill.) Vol. VIII, No. 1, at 2 (1997).


306
.

See id
.


307
.

Id
.


308
.

See

Communicating With or About Clients on the Internet

Legal , Ethical, and Liability
Concerns
, 12 ALAS News, No. 3 (Autumn 19
95).


309
.

See

Orr,
supra

note 301.


310
.

See id
.

38

TEXAS TECH LAW REVIEW

[Vol. 31:1225


Lawyers are required by strict rules of
ethics to keep information about
their clients confidential.
311

The use of modern communication technology will
continue to create new questions regarding the level of protection required to
protect client confidentiality and to maintain the attorney
-
clie
nt privilege.
312

From
early American cases to modern federal law, the confidentiality of virtually all
communications made within the attorney
-
client employment relationship has
remained one of the most steadfast legal principles.
313

Title III and other
evidentiary and constitutional protections protect the attorney
-
client privilege for
conversations using a traditional telephone.
314

The ECPA extended the
protection to virtually all electronic communications.
315

The ABA and many
state bar associations h
ave recommended that the same expectation of privacy
and level of protection should apply to e
-
mail.
316

Traditionally, the reasonable standard of care within a particular jurisdiction
is used to measure issues related to client protection.
317

However, the

ABA and
state bar ethics opinions may have created a special standard of protection for e
-
mail and other types of electronic communications.
318

An ABA opinion indicates
that encryption will not be required in non
-
confidential e
-
mail
communications.
319

N
onetheless, there is cautionary language included in the
ABA opinion that alerts attorneys to a higher obligation than merely taking
“reasonable precautions” when transferring confidential client information.
320

The ABA has determined that lawyers have an

affirmative duty to consider the
(1) sensitivity of the communication, (2) the effect of disclosure, and (3) the
relative security of the selected communication medium.
321

In certain
circumstances, “particularly strong protective measures are warranted t
o guard
against the disclosure of highly sensitive matters.”
322

In fact, the ABA ethics
committee recognized that “extraordinary measures” of protection are warranted
when the lawyer reasonably believes that highly sensitive confidential client
informatio
n is being transmitted.
323

It is important to remember that the disciplinary rules are to be treated as
merely the “minimum standards of conduct, below which no lawyer can fall
without being subject to disciplinary action.”
324





311
.

See

M
ODEL
R
ULES OF
P
ROFESSIONAL
C
ONDUCT

Rule 1.6 (1983).


312
.

See

Colleen L. Rest,
Electronic Mail and Confidential Client
-
Attorney Communications: Risk
Management
, 48
C
ASE
W.

R
ES
.

L.

R
EV
.

309, 310
-
1
1 (1998).


313
.

See

Hatfield,
supra

note 10, at 538.


314
.

See supra

Part III.


315
.

See supra

Part IV.


316
.

See supra

Part IV.


317
.

See

Fagerlund,
supra

note 302, at 661.


318
.

See id
.


319
.

See

ABA Comm. on Ethics & Professional Responsibility, Formal
Op. 99
-
413 (1999).


320
.

See id
.


321
.

See id
.


322
.

Id
.


323
.

Id
. (emphasis added);
see also

M
ODEL
R
ULES OF
P
ROFESSIONAL
C
ONDUCT

Rule 1.6(a) (stating
that a lawyer shall not reveal a client’s information).


324
.

T
EX
.

D
ISCIPLINARY
R.

P
ROF

L
C
ONDUCT
, preamb
le ¶ 7.

2000]

PLAYING I SPY WITH CLIENT

CONFIDENCES

39


The question for the future
is whether lawyers will be considered to be
acting in a reasonably prudent manner if they use e
-
mail and other electronic
communication in an indiscriminate manner without first evaluating the risk of
disclosure and the impact of breached confidentiality.
Furthermore, what are the
appropriate standards that define the “extraordinary measures” required for
communicating highly sensitive confidential client information? Perhaps an
appropriate warning is provided by ALAS in discussing malpractice risks: “[t]h
e
last and most important
caveat

is that some confidences are so valuable that the
client will want to take extraordinary steps to protect them, regardless of the law
of confidentiality, privilege, or professional liability. The key is to recognize
these
extraordinary situations and then take extraordinary measures.”
325

This clear, cautionary language should be considered as an integral part of
the determination of the “reasonable care” standard required for maintaining
and protecting confidential client i
nformation.
326

Following the publication of the
ABA opinion, there exists a high risk that attorneys will incorrectly assume that
all attorney
-
client e
-
mail communications are entitled to automatic protection
under the attorney
-
client privilege.
327

Howev
er, a more complete reading of the
opinion identifies a higher standard of care for sensitive client information.
328

This higher standard defines “reasonable care” to include an affirmative duty for
attorneys to evaluate whether e
-
mail is an appropriate m
ethod of communication
before sensitive information is transmitted.
329





325
.

F
REIVOGEL
,
supra

note 305, at 2.


326
.

See id
.


327
.

See

ABA Comm. on Ethics & Professional Responsibility, Formal Op. 99
-
413 (1999).


328
.

See id
.


329
.

See id
.