Notre Dame Journal of Law, Ethics & Public Policy
email, cell phones, ethics, professional responsibility, attorney-client privilege, confidentiality
Regardless of the known security risks, it is difficult, if not impossible, to imagine a law firm in the twentieth century operating without the technological advancements that make it possible to communicate with anyone, anywhere, at any time. These advancements often enable immediate responses that are beneficial to attorneys and clients alike. Cellular phone usage and electronic mail are an integral mode of communication between firm members, negotiating attorneys, as well as between attorneys and their clients. While it has developed into a mode of communication making the practice of law more efficient, it is doubtful that most attorneys give too much thought to what exactly happens to the content of their message as it either travels along Internet phone lines or is relayed from cell phone terminal to cell phone terminal. The prohibition on disclosing confidential communications is one of the cornerstones of the legal profession. To that end, Disciplinary Rule 4-101 of the Model Code of Professional Responsibility provides: "[A] lawyer shall not knowingly reveal a confidence or secret of his client." Model Rule of Professional Conduct 1.6 provides: "A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation ...." Neither one of these ethical standards contemplates a situation in which an attorney might reasonably be expected to foresee that his or her communications with a client were possibly being disclosed to an unknown audience, such as exists when using electronic communications. These rules of Professional Responsibility should be updated to reflect these technological advancements.
Karin Mika, Of Cell Phones and Electronic Mail: Disclosure of Confidential Information under Disciplinary Rule 4-101 and Model Rule 1.6 , 13 Notre Dame Journal of Law, Ethics & Public Policy 121 (1999)