Home » Uncategorized » Protecting Attorney-Client Emails: Why Aren’t More Lawyers Encrypting?

Protecting Attorney-Client Emails: Why Aren’t More Lawyers Encrypting?

The Model Rules of Professional Conduct emphasize confidentially as one of the most important ethical responsibilities of a lawyer.[1] Specifically, Model Rule 1.6 prohibits an attorney from revealing information relating to the representation of a client, and requires lawyers to take affirmative steps to keep attorney-client information confidential.[2] Confidential information includes in-person conversations, as well as electronic communications, such as email. Emails are one of the most popular forms of lawyer communication, and lawyers are tasked with keeping client confidentiality with each email he or she sends or receives. In 2015, an average lawyer managed more than 17,000 emails, up from 11,000 in 2013.[3] This exorbitant amount of electronic communication raises the question: how do lawyers keep attorney-client confidentiality with respect to email communications, and how do lawyers protect emails from being compromised or read by unintended recipients?

One of the most efficient ways to protect emails is through encryption. Email encryption reduces the risk of emails getting into the wrong hands during the routine transmission of an electronic communication. Generally speaking, email encryption conceals the content of the email in order to prevent people other than the sender and the recipient from reading the content. Some forms of email encryption can prevent a recipient from forwarding the message to others, while other forms of encryption require authentication to view the contents of the message itself. In this way, encrypting emails is one way lawyers can protect communications, and ensure that contents of email are kept confidential, therefore complying with ethical responsibilities as practicing lawyers.

There are many types of email encryption services lawyers can use to encrypt emails in their day-to-day work. Email servers such as Microsoft Outlook have its own email encryption system. Alternatively, a lawyer can use easily accessible and user-friendly programs such as Virtru.[4] According to an ABA survey, only about 35% of lawyers in 2015 used email encryption.[5] If email encryption software is so accessible and easy to use, then why aren’t more lawyers using encryption to secure their emails?

The ABA survey discussed above reveals that an overwhelming majority of lawyers—71% of survey respondents—rely instead on simply the confidentiality statement either in the body or signature of the email messages they send.[6] But confidentiality statements do not protect against email interceptions, nor do they prevent an unintended recipient of an email from reading the contents of the confidential communication. As the saying goes, “you can’t un-ring the bell,” so a confidentiality disclaimer written in an email does not do nearly enough to protect email communications between a lawyer and client.

The consequences of not properly securing the contents of an email communication may be grave. Anything that is written into an email can turn up in future litigation. Therefore, lawyers should be mindful of what is being said in an email, and lawyers should understand the implications that could arise if unintended recipients read an email.   Overall, lawyers should err on the side of caution and encrypt emails relating to client representation, whether the emails are sent to the client, opposing counsel, or even a co-worker.

[1] See Model Rules of Prof’l Conduct R. 1.6 (2009).

[2] Id. at Cmt. 2.

[3] See MetaJure “Surprising Statistics About Lawyer Information Overload, (Apr. 25, 2016) By Firm Administration, Innovation& Technology, http://metajure.com/surprising-statistics-lawyer-information-overload/.

[4] “FYI: Playing it Safe with Encryption,” American Bar Association, Law Technology Resource Center, <http://www.americanbar.org/groups/departments_offices/ legal_technology_resources/resources/charts_fyis/FYI_Playing_it_safe.html>.

[5] Robert Ambrogi, “Lawyers’ Use of Email Encryption Remains Dismally Low, ABA Survey Says,” Law Sites, Oct. 1, 2015, <http://www.lawsitesblog.com/2015/ 10/lawyers-use-of-email-encryption-remains-dismally-low-aba-survey-says.html>.

[6] Id.

Catherine Carney