May an Illinois lawyer email clients without encryption, and do the solicitation rules apply to a law firm web site?

Plain-English summary

The committee received inquiries about two electronic-communication issues: whether a lawyer's confidentiality duty permits using email for client matters, and whether creating and using a web site or contacting prospective clients online should be governed by the rules on in-person solicitation. The opinion addressed both against the 1990s technology it described in detail (email services, the Internet, bulletin boards, and the World Wide Web).

On confidentiality, the opinion concluded that a lawyer does not violate Rule 1.6 by communicating with a client using email services, including the Internet, without encryption, and need not obtain specific client consent to unencrypted email. It reasoned that the expectation of privacy in email is no less reasonable than in an ordinary telephone call, and that unauthorized interception of email is illegal under the Electronic Communications Privacy Act, which also preserves the privileged character of intercepted communications. The opinion disagreed with South Carolina and Iowa opinions that had urged encryption or express consent for sensitive matters, while recognizing that unusual circumstances involving an extraordinarily sensitive matter might call for enhanced measures.

On the second issue, the opinion concluded that an Internet home page is the functional equivalent of a yellow-pages entry or a firm brochure, so a web site is not a "communication directed to a specific recipient" that triggers Rule 7.3; instead, Rule 7.1 (false or misleading statements) and Rule 7.2 (advertising) provide adequate guidance. By contrast, the opinion concluded that initiating unrequested contact with a specific person or group through a bulletin board or chat group can implicate Rule 7.3, and that targeted messages should be identified as advertising material. It added that lawyers offering personalized advice online may form attorney-client relationships, carrying the conflict concerns of Rules 1.7 and 1.9 it had identified in Opinion No. 94-11.

Currency note

This opinion was issued in 1997, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in January 2010 as generally consistent with the 2010 Rules (referring to Rules 1.6, 7.1, 7.2, 7.3, and 7.4), while noting the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis, and the technology the opinion describes has changed substantially. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can an Illinois lawyer email clients without encryption?

A: Yes. The opinion concluded that using email services, including the Internet, without encryption does not violate Rule 1.6, because the expectation of privacy is comparable to an ordinary telephone call and unauthorized interception is illegal under the Electronic Communications Privacy Act.

Q: Does the lawyer need the client's consent to use unencrypted email?

A: No. The opinion concluded that specific client consent to unencrypted email is not required, though it recognized that an extraordinarily sensitive matter might call for enhanced security measures.

Q: Is a law firm web site treated as solicitation?

A: No. The opinion concluded that a web site is the equivalent of a yellow-pages entry or brochure, governed by Rules 7.1 and 7.2 on advertising, not by the solicitation rule, Rule 7.3.

Q: When do online communications trigger the solicitation rule?

A: The opinion concluded that initiating unrequested contact with a specific person or group through a bulletin board or chat group can implicate Rule 7.3, and such targeted messages should be identified as advertising material.

Background and rules framework

The opinion interpreted Rule 1.6 (confidentiality of information; Model Rule 1.6) and the communications rules, Rule 7.1 (false or misleading communications; Model Rule 7.1), Rule 7.2 (advertising; Model Rule 7.2), and Rule 7.3 (direct contact and solicitation; Model Rule 7.3). It also discussed the Electronic Communications Privacy Act, 18 U.S.C. section 2510 et seq., as the source of criminal and civil liability for intercepting electronic communications.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 (confidentiality of information) / Illinois Rule 1.6
• Model Rule 7.1 (false or misleading communications) / Illinois Rule 7.1
• Model Rule 7.2 (advertising) / Illinois Rule 7.2
• Model Rule 7.3 (solicitation of clients) / Illinois Rule 7.3

Statutes:

• Electronic Communications Privacy Act, 18 U.S.C. section 2510 et seq.

Other opinions cited:

• ISBA Opinion No. 90-07 (cordless and mobile telephones and client confidentiality)
• ISBA Opinion No. 94-11 (call-in legal advice service; conflicts under Rules 1.7 and 1.9)
• South Carolina Bar Advisory Opinion 94-27; Iowa Board of Professional Ethics and Conduct Opinion 96-1 (both reaching a contrary view on encryption)

See also

• ISBA Ethics Op. 16-06: Obligations When Using Cloud-Based Services
• ISBA Ethics Op. 10-01: Law Firm's Use of a Third-Party Technology Vendor
• ISBA Ethics Op. 15-05: Links on a Lawyer's Web Site to Other Businesses

Source

• Landing page: https://www.isba.org/ethics/opinions/9610