May a Connecticut lawyer use a pay-per-call advertising service that records and stores prospective-client calls?

Plain-English summary

A pay-per-call Yellow Pages service assigned an advertising number, forwarded incoming calls to the lawyer, and could optionally record the calls on the vendor's server. The vendor said it did not access recordings unless asked, but the requester reported that a vendor representative had described listening to another lawyer's recordings.

Rules 1.6 and 1.18 protect information from both clients and prospective clients. The Committee concluded that those duties require lawyers to avoid communication methods that pose an unreasonable risk of inadvertent disclosure. Storage on a third party's server is not automatically a violation, but the lawyer must make reasonable efforts to ensure that the vendor's conduct is compatible with the lawyer's duties.

Because the record was unclear about vendor access, the Committee required the contract to provide that Yellow Pages would not have access to recordings. The lawyer also had to ensure that no third party, including a vendor representative, could review a recording without the client's informed consent.

Reasonableness depends on factors such as the information's sensitivity, the likelihood of disclosure without added safeguards, implementation cost and difficulty, and effects on the representation. The Committee also treated the limited importance of recording intake calls to the lawyer's work as relevant when assessing whether the risk was reasonable.

The opinion assumed that every caller would receive a warning before recording. It noted, outside the Committee's jurisdiction, that unilateral recording generally is unlawful unless Connecticut General Statutes § 52-570d is satisfied.

In practice

Under this opinion, a vendor-hosted recording feature requires more than caller notice. The confidentiality analysis turns on contractual denial of vendor access, control over third-party review, and the reasonableness of storing the particular client or prospective-client information.

Common questions

Q: Does third-party server storage automatically violate confidentiality duties?

A: No. The opinion permits third-party storage when reasonable efforts make the vendor's conduct compatible with the lawyer's obligations.

Q: May the advertising vendor listen to the recordings?

A: Not under the required arrangement. The contract must deny the vendor access, and a vendor representative may not review a recording without client informed consent.

Q: Do confidentiality duties apply before a lawyer-client relationship forms?

A: Yes. Rule 1.18 prohibits use or disclosure of information learned in a prospective-client consultation even when no representation follows.

Q: Is an automated recording warning enough by itself?

A: No. The opinion assumed callers received a warning but separately required confidentiality safeguards against vendor and third-party access.

Q: Did the Committee decide whether recording the call was lawful?

A: No. It identified Connecticut General Statutes § 52-570d but stated that recording law was outside its jurisdiction.

Background and rules framework

Rule 1.6 protects information relating to current-client representations, while Rule 1.18 extends confidentiality to prospective-client consultations. The opinion uses the reasonable-efforts factors in the approved Rule 1.6(e) amendment and relies on Informal Opinion 2013-07's cloud-vendor analysis.

Citations and references

Connecticut Rules of Professional Conduct:

• Rules 1.6, 1.6(e), and 1.18

Statutes:

• Connecticut General Statutes § 52-570d

Other opinions cited:

• Connecticut Informal Opinion 2013-07, cloud computing
• Alabama Ethics Opinion 2010-2
• Arizona Ethics Opinion 09-04 (2009)
• California Ethics Opinion 2010-179
• Florida Ethics Opinion 06-1 (2006)
• Iowa Ethics Opinion 11-01 (2011)
• Illinois Ethics Opinion 10-01 (2009)
• Massachusetts Ethics Opinion 12-03 (2012)
• Maine Ethics Opinion 194 (2008)
• New Hampshire Ethics Opinion 2012-13/4 (2012)
• North Carolina Ethics Opinion 6 (2011)
• North Dakota Ethics Opinion 99-03
• New Jersey Ethics Opinion 107 (2006)
• Nevada Ethics Opinion 33 (2006)
• New York State Ethics Opinion 842 (2010)
• Oregon Ethics Opinion 2011-188 (2011)
• Pennsylvania Ethics Opinion 2011-200 (2011)
• Virginia Ethics Opinion 1818 (2005)
• Vermont Ethics Opinion 2003-03 (2003)

See also

• CT Informal Op. 13-07: Cloud computing
• NY State Bar Op. 842: Cloud storage
• VSB Op. 1818: Electronic-only client files

Source

• Landing page: Connecticut Bar Association Informal Ethics Opinions
• Original PDF: Informal Opinion 13-08