All communications between the client and the lawyer are confidential. This is a fundamental principle in the client-lawyer relationship. The lawyer must maintain the confidentiality of all information relating to the representation of the client. This encourages the client to communicate fully and honestly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer must keep the information confidential regardless of whether the client indicates a desire for confidentiality or whether disclosure of particular information might be embarrassing or detrimental.
The principle of confidentiality is found in the lawyer-client privilege in the law of evidence and the rule of confidentiality in the code of professional ethics. The lawyer-client privilege applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The confidentiality rule applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. The duty of confidentiality continues after the client-lawyer relationship has terminated.
A lawyer is authorized to make disclosures about a client when appropriate in carrying out the representation, except to the extent that the client’s instructions or special circumstances limit that authority. In litigation, for example, a lawyer may disclose information by admitting a fact that cannot properly be disputed, or in negotiation by making a disclosure that facilitates a satisfactory conclusion.
Using Technology to Communicate Client Information
The lawyer must maintain the confidentiality of all information relating to the representation of the client. A lawyer should take reasonable steps to prevent interception or unintended disclosure of confidential communications. All communication carries with it some such risk, for example by eavesdropping, wiretapping, or theft of mail. The precautions to be taken by a lawyer depend on the circumstances, including the sensitivity of the information, the manner of communication, the apparent risks of interception or unintended disclosure, and the client’s wishes.
The client may wish to communicate with the lawyer by electronic mail (e-mail) or cellular telephone. Law enforcement, Internet Service Providers, network administrators, employers, or third persons with access to your network, server, or computer, may intercept e-mail communications. Cellular and cordless telephone calls may also be intercepted. Communications by analog cordless or cellular phones generally are considered insecure; they may be intercepted intentionally or inadvertently with unsophisticated and readily available equipment, such as other similar phones or scanners.
Facsimile machines typically transmit data over conventional telephone lines, and there is a risk of unintended dissemination of the communication at its destination, where the communication may be received in a common area of the workplace or home and may be read by persons other than the intended recipient. Similar concerns may be raised by voice-mail and answering machine messages. Generally, communications by facsimile, e-mail, and digital cordless or cellular phones, like those by mail and conventional corded telephone (land line), are considered secure – their interception involves intent, expertise, and violation of federal law.
A lawyer may use technological means such as electronic mail (e-mail) and cordless and cellular telephones to communicate confidential client information without violating the Rules of Professional Conduct. E-mail without encryption, and digital cordless and cellular telephones used in a location where digital service is available, may be used to transmit and receive confidential client information without violating the Rules of Professional Conduct. However, all e-mail and cellular and cordless telephone communications should be conducted cautiously, and the client should refrain from discussing sensitive client matters by such means. Highly sensitive conversations should take place in a private face-to-face meeting.