Can a lawyer email confidential client information over the Internet without encryption?

Plain-English summary

The opinion concluded that an attorney may transmit information relating to the representation of a client by encrypted or unencrypted email over the Internet without violating HRPC 1.6(a). It reasoned that this mode of transmission affords a reasonable expectation of privacy from a technological and legal standpoint, and that the same privacy accorded to U.S. and commercial mail, land-line telephonic transmissions, and facsimiles applies to Internet email.

The opinion added that if information is sensitive, an attorney should consult with the client and follow the client's instructions as to the mode of transmission, citing HRPC 1.2(a). It referenced ABA Formal Opinion 99-413 (1999).

Currency note

This opinion was issued in 2001, before the Hawaii Supreme Court's 2014 revisions to the Hawaii Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a Hawaii lawyer send client information by unencrypted email?

A: The opinion concluded that an attorney may transmit client information by encrypted or unencrypted email over the Internet without violating HRPC 1.6(a), reasoning that email affords a reasonable expectation of privacy.

Q: How did the opinion compare email to other communications?

A: Per the opinion, the same privacy accorded to U.S. and commercial mail, land-line telephone transmissions, and facsimiles applies to Internet email.

Q: What did the opinion say about sensitive information?

A: The opinion concluded that if information is sensitive, the attorney should consult with the client and follow the client's instructions as to the mode of transmission, citing HRPC 1.2(a).

Citations and references

Rules of Professional Conduct (Hawaii; cf. Model Rules):

• HRPC 1.6(a) (confidentiality of information) (cf. Model Rule 1.6)
• HRPC 1.2(a) (consulting the client on the means of representation) (cf. Model Rule 1.2)

Other opinions cited:

• ABA Formal Opinion 99-413 (1999): protecting the confidentiality of unencrypted email.

See also

• Hawaii Ethics Op. 36: Insurer Outside-Auditor Disclosure
• ABA Ethics Op. 10-457: Lawyer Web Sites

Source

• Landing page: https://dbhawaii.org/legal-ethics-advice-for-hawaii-lawyers/
• Original PDF: https://dbhawaii.org/wp-content/uploads/FO_40_-_E-MAIL_SECURITY.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Office of Disciplinary Counsel
Supreme Court, State of Hawaii
1132 Bishop Street, Suite 300
Honolulu, Hawai'i 96813
Telephone (808) 521-4591

FORMAL OPINION NO. 40
(E-Mail Security)

An attorney may transmit information relating to the representation of a client by encrypted or unencrypted e-mail over the Internet without violating HRPC 1.6(a). This 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. If information is sensitive, an attorney should consult with the client and follow the client's instructions as to the mode of transmission. HRPC 1.2(a) (an attorney shall consult with the client as to the means by which the objectives of the representation are to be pursued). ABA Formal Opinion 99-413 (1999).

DATED: Honolulu, Hawai'i, April 26, 2001.

Carroll S. Taylor
Chairperson, Disciplinary Board

Carole R. Richelieu
Chief Disciplinary Counsel