In Kentucky, may a lawyer email clients without encryption, and is a law firm website subject to the solicitation rules?

Plain-English summary

The Committee issued this opinion to provide early guidance on lawyers' use of the Internet, and it adopted the reasoning of Illinois State Bar Op. 96-10, attached as an appendix. On Question 1, it concluded that a lawyer may use electronic mail services, including the Internet, without encryption to communicate with clients, unless unusual circumstances require enhanced security measures. The reasoning was that the expectation of privacy in email is no less reasonable than in an ordinary telephone call, and that unauthorized interception of electronic messages is illegal under the federal Electronic Communications Privacy Act; specific client consent to unencrypted email is not required, though extraordinarily sensitive matters might call for added measures.

On Question 2, the Committee concluded, with a qualified no, that a lawyer's website is not a "communication directed to a specific recipient" that would trigger the solicitation rules (KRPC 7.30, replaced by 7.09). Likening a home page to a yellow-pages entry and other site material to a firm brochure, the Committee concluded that only the general rules on communications about a lawyer's services and advertising (KRPC 7.10, 7.20, and the advertising rules at KRPC 7.01 to 7.08) apply to a passive website. If, however, a lawyer uses email or another electronic service to direct messages to a specific recipient (for example, unrequested targeted messages from a chat group or bulletin board), the solicitation rules apply, and such messages should be identified as advertising. The adopted opinion also cautioned that lawyers giving individualized advice online may form attorney-client relationships, with the attendant conflict and confidentiality duties.

Currency note

This opinion was issued in 1998 and predates the Kentucky Supreme Court's substantial revisions to the advertising rules and the 2009 revisions to the Rules of Professional Conduct (SCR 3.130); Rule 7.30 referenced here was deleted and replaced by Rule 7.09. The Kentucky Bar Association notes that lawyers should consult the current version of the rules and the Attorneys' Advertising Commission Regulations before relying on this opinion. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Could a Kentucky lawyer email a client without encryption?

A: Per the opinion, yes, unless unusual circumstances required enhanced security. The Committee concluded unencrypted email does not violate confidentiality, because the expectation of privacy is comparable to a phone call and interception is illegal.

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

A: The opinion concluded no, specific consent was not required, though extraordinarily sensitive matters might call for added security measures.

Q: Was a law firm website treated as solicitation?

A: Per the opinion, no. A passive website was treated like a yellow-pages listing or brochure, governed by the general advertising rules, not the solicitation rules.

Q: When did the solicitation rules apply online?

A: The opinion concluded they applied when a lawyer directed messages to a specific recipient, such as unrequested targeted messages, which had to be identified as advertising.

Background and rules framework

The opinion interprets KRPC 1.6 (confidentiality; the Model Rule 1.6 counterpart) as applied to email, and the Kentucky advertising and solicitation rules then in effect (KRPC 7.01 to 7.08, 7.10, 7.20, and the solicitation rule KRPC 7.30, later 7.09; the Model Rule 7.2 and 7.3 counterparts), drawing on Illinois State Bar Op. 96-10 and the federal Electronic Communications Privacy Act (18 U.S.C. 2510 et seq.).

Citations and references

Rules of Professional Conduct:

• MR 1.6 / KRPC 1.6 (confidentiality)
• MR 7.2 / KRPC 7.10, 7.20, 7.01 to 7.08 (advertising and communications about services)
• MR 7.3 / KRPC 7.30 (direct contact with prospective clients; later replaced by KRPC 7.09)

Statutes:

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

Other opinions cited:

• Illinois State Bar Op. 96-10 (1997): email confidentiality and websites (adopted by the Committee)

See also

• KBA Ethics Op. E-396: Common Firm Name for Lawyers in Separate Firms
• KBA Ethics Op. E-408: Lawyer Who Is Also a Real Estate Sales Agent

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-403.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-403
Issued: March 1998

Since the adoption of the Rules of Professional Conduct in 1990, the Kentucky Supreme
Court has made substantial revisions to the rules governing the advertisement of legal
services. For example, Rule 7.30 was deleted and replaced with Rule 7.09, entitled
“Direct contact with potential clients.” Lawyers should consult the current version of the
rules and comments, SCR 3.130 (available at http://www.kybar.org) and the Attorneys’
Advertising Commission Regulations, before relying on this opinion.

Question 1:

May a lawyer use electronic mail services including the Internet to communicate
with clients without encryption?

Answer:

Yes, unless unusual circumstances require enhanced security measures.

Question 2:

Is the creation and use by a lawyer of an Internet “web site” containing
information about the lawyer and the lawyer’s services that may be accessed by
Internet users, including prospective clients, a communication falling within
KRPCs 7.09 [Prohibited Solicitation] or 7.30 [Direct Contact With Prospective
Client]?

Answer:

Qualified No. Unless the lawyer uses the Internet or other electronic mail service
to direct messages to a specific recipient [in which case the rules governing
solicitation would apply, only the general rules governing communications
regarding a lawyer’s services and advertising [KRPCs 7.10, 7.20, and the socalled advertising rules set forth at KRPCs 7.01-7.08] should
apply to a
lawyer’s “web-site” on the Internet.

References:

Illinois Op. 96-10 (1997); Kurt Metzmeier & Shaun Esposito, How to Avoid
Losing your License on the Information Superhighway; Ethical Issues Raised by
the Use of the Internet in The Practice of Law (1997-98).
OPINION

Despite widespread use of the Internet, the Committee has received few inquiries
regarding its use. Still, the Committee is of the view that this opinion should be issued to
provide some guidance and some comfort. The subject is addressed in a recent article cited in
the references, which is available from the UK Law Library, and which has been submitted for
publication in the Bench & Bar.
The Committee finds persuasive the comprehensive and thoughtful opinion of the Illinois
State Bar Association, ISBA Advisory Opinion No. 96-10, excerpts of which we attach as an
Appendix.

APPENDIX
ILLINOIS STATE BAR ASSOCIATION
ISBA Advisory Opinion on Professional Conduct
ISBA Advisory Opinions on Professional Conduct are prepared as an educational service
to members of the ISBA. While the Opinions express the ISBA interpretation of the Illinois
Rules of Professional Conduct and other relevant materials in response to a specific hypothesized
fact situation, they do not have the weight of law and should not be relied upon as a substitute for
individual legal advice.
Illinois Opinion No. 96-10
May 16, 1997
Topic:

Electronic communications; confidentiality of client information; advertising and
solicitation.

Digest:

Lawyers may use electronic mail services, including the Internet, without
encryption to communicate with clients unless unusual circumstances require
enhanced security measures. The creation and use by a lawyer of an Internet "web
site" containing information about the lawyer and the lawyer's services that may
be accessed by Internet users, including prospective clients, is not
"communication directed to a specific recipient" within the meaning of the rules,
and therefore only the general rules governing communications concerning a
lawyer's services and advertising should apply to a lawyer "web site" on the
Internet. If a lawyer uses the Internet or other electronic mail service to direct
messages to specific recipients, then the rules regarding solicitation would apply.

Ref.:

Illinois Rules of Professional Conduct, Rules 1.6, 7.1, 7.2, 7.3 and 7.4;
ISBA Opinion Nos. 90-07 and 94-11; Electronic Communications Privacy Act, 18
USC §2510, et seq.
QUESTIONS

The Committee has received various inquiries regarding ethical issues raised by use of
electronic means of communication, including electronic mail and the "Internet," by lawyers.
These inquiries usually involve two general areas of concern. The first is whether electronic mail
may be used to communicate with clients regarding client matters in view of a lawyer's duty
under the ethics rules to maintain the confidentiality of client information. The second is whether
the creation and use of a "web site" and other forms of contract with prospective clients may be
conducted by lawyers on the Internet, and if so, whether the rules regarding "in person"
solicitation should apply to such contact.
Because of the technical nature of the discussion, the Committee will use the following
commonly accepted definitions in this opinion. The Internet is a supernetwork of computers that
links together individual computers and computer networks located at academic, commercial,
government and military sites worldwide, generally by ordinary local telephone lines and longdistance transmission facilities. Communications between computers or individual networks on
the Internet are achieved throughout he use of standard, nonproprietary protocols.

Electronic mail, commonly known as e-mail, is an electronic message that is sent from one
computer to another, usually through a host computer on a network. E-mail messages can be sent
through a private or local area network (within a single firm or organization), through an
electronic mail service (such as America Online, CompuServ or MCI Mail), over the Internet, or
through any combination of these methods.
A bulletin board service (sometimes called a "BBS") is an electronic bulletin board on a
network where electronic messages may be posted and browsed by users or delivered to e-mail
boxes. A "newsgroup" is a type of bulletin board service in which users can exchange
information on a particular subject. A "chat" group is a simultaneous or "real time" bulletin
board or newsgroup among users who send their questions or comments over the Internet.
The World Wide Web is that part of the Internet consisting of computer files written in a
particular format (the "HTML" format) that includes "hyperlinks" (text or symbols that the user
may click on to switch immediately to the item identified) as well as graphics and sound, to
enable the creation of complex messages. A "home page" is a computer file containing text and
graphics in the HTML format usually continuing information about its owner, which can be
obtained over the Internet and viewed by transmitting it from the owner's computer to the user's
terminal. A "web site" is a set of computer files containing text and graphics in the HTML
format and organized around a central home page.
The Electronic Communications Privacy Act, 18 USC §2510, et seq. (the "ECPA"), is the
federal codification of the intrusion arm of the common law tort of invasion of privacy applied to
electronic communication and provides criminal and civil penalties for its violation. The ECPA
is actually the 1986 revision of the federal wiretap statute originally enacted in 1968, but the
term ECPA is now commonly used to refer to the entire statute, as amended.

OPINION
The first issue, whether a lawyer may use electronic mail services including the Internet
to communicate with clients, arises out of a lawyer's duty to protect confidential client
information. Rule 1.6(a) of the Illinois Rules of Professional Conduct provides that "...a lawyer
shall not, during or after termination of the professional relationship with the client, use or reveal
a confidence or secret of the client known to the lawyer unless the client consents after
disclosure." AS the Terminology provisions of the Rules state, the information a lawyer must
protect includes information covered by the lawyer-client privilege (a "confidence") as well as
information that the client wishes to be held inviolate or the revelation of which would be
embarrassing or detrimental to the client (a "secret").
The duty to maintain the confidentiality of client information implies the duty to use
methods of communication with clients that provide reasonable assurance that messages will be
and remain confidential. For that reason, the Committee concluded in Opinion No. 90-07
(November 1990) that a lawyer should not use cordless or other mobile telephones that were
easily susceptible to interception when discussing confidential client matters. The Committee
also opined that a lawyer conversing with a client over a cordless or mobile telephone should
advise the client of the risk of the loss of confidentiality.

With the increased use of electronic mail, particularly electronic mail transmitted over the
Internet, have come suggestions that electronic messages are not sufficiently secure to be used by
lawyers communicating with clients. At least two state etches opinions have concluded that
because it is possible for Internet or other electronic mail service providers to intercept electronic
mail service providers to intercept electronic mail messages, lawyers should not use electronic
mail for "sensitive" client communications unless the messages were encrypted or the client
expressly consented to "non-secure" communication. South Carolina Bar Advisory Opinion 9427 (January 1995); Iowa Supreme Court Board of Professional Ethics and Conduct Opinion 96-1
(August 29, 1996). After reviewing much of the available literature on this issue, the Committee
disagrees with these opinions.
Among the numerous recent articles regarding a lawyer's use of electronic mail, the
Committee found three to be particularly useful and informative. These are: Joan C. Rogers,
"Malpractice Concerns Cloud E-Mail, On-Line Advice," ABA/BNA Lawyers' Manual on
Professional Conduct (March 6, 1996); Peter R. Jarvis & Bradley F. Tellam, "High-Tech Ethics
and Malpractice Issues," 1996 Symposium Issue of the Professional Lawyer, p. 51 (1996); David
Hricik, "Confidentiality and Privilege in High-Tech Communications," 8 Professional Lawyer, p.
1 (February 1997). From these and other authorities, there is a clear consensus on two critical
points. First, although interception of electronic messages is possible, it is certainly no less
difficult than intercepting an ordinary telephone call. Second, intercepting an electronic mail
message is illegal under the ECPA.
Courts and ethics committees have uniformly held that persons using ordinary telephones
for confidential communications have a reasonable expectation of privacy. The three common
types of electronic mail messages appear no less secure. For example, electronic messages that
are carried on a local area or private network may only be accessed from within the organization
owning the network. Such messages would therefore clearly appear subject to a reasonable
expectation of privacy.
Other electronic messages are carried by commercial electronic mail services or networks
such as America Online, CompuServ or MCI Mail. Typically, these services transmit e-mail
messages from one subscriber's computer to another computer "mailbox" over a proprietary
telephone network. Typically, the computer mailboxes involved are password-protected. Because
it is possible for dishonest or careless personnel of the mail service provider to intercept or
misdirect a message, this form of electronic mail is arguably less secure than messages sent over
a private network. AS a practical matter, however, any ordinary telephone call may also be
intercepted or misdirected by dishonest or careless employees of the telephone service provider.
Again, this possibility has not compromised the reasonable expectation of privacy of ordinary
telephone users. The result should be the same for electronic mail service subscribers.
The third type of electronic mail, that carried on the Internet, typically travels in another fashion.
Rather than moving directly from the sender's host computer to the recipient's host computer,
Internet messages are usually broken into separate "packets" of data that are transmitted
individually and then re-assembled into a complete message at the recipient's host computer.
Along the way, the packets travel through, and may be stored temporarily in, one or more other
computers (called "routers") operated by third parties (usually called an "internet service
provider" or "ISP") that help distribute electronic mail over the Internet.
Unlike a cordless cellular telephone message, for example, an Internet e-mail is not broadcast
over the open air waves, but through ordinary telephone lines and the intermediate computers.
When an Internet message is transmitted over an ordinary telephone line, it is subject to the same

protections and difficulties of interception as an ordinary telephone call. To intercept an Internet
communication while it is in transit over telephone lines requires an illegal wiretap.
Consequently, the real distinction between an Internet electronic message and an ordinary
telephone call is that Internet messages may be temporarily stored in, and so can be accessed
through, a router maintained by an ISP. It is possible that an employee of an ISP (as part of the
maintenance of the router) could lawfully monitor the router and thereby read part or all of a
confidential message. As in the case of telephone and proprietary electronic mail providers, it is
also possible for dishonest employees of an ISP to intercept messages unlawfully. The
Committee does not believe that the opportunity for illegal interception by personnel of an ISP
makes it unreasonable to expect privacy of the message.
As noted above, it is also clear that unauthorized interception of an Internet message is a
violation of the ECPA, which was amended in 1986 to extend the criminal wiretapping laws to
cover Internet transmissions. As part of the 1986 amendments, Congress also treated the issue of
privilege in 18 USCA §2517(4), as follows:
No otherwise privileged wire, oral, or electronic communication intercepted in
accordance with, or in violation of, the provisions of this chapter shall lose its
privileged character.
This provision demonstrates that Congress intended that Internet messages should be
considered privileged communications just as ordinary telephone calls.
In summary, the Committee concludes that because (1) the expectation of privacy for
electronic mail is no less reasonable than the expectation of privacy for ordinary telephone calls,
and (2) the unauthorized interception of an electronic message subject to the ECPA is illegal, a
lawyer does not violate Rule 1.6 by communicating with a client using electronic mail services,
including the Internet, without encryption. Nor is it necessary, as some commentators have
suggested, to seek specific client consent to the use of unencrypted e-mail. The Committee
recognizes that there may be unusual circumstances involving an extraordinarily sensitive matter
that might require enhanced security measures like encryption. These situations would, however,
be of the nature that ordinary telephones and other normal means of communication would also
be deemed inadequate.
With respect to the second general issue, the extent to which a lawyer may use Internet
web site to communicate with clients and prospective clients, the Committee believes that the
existing Rules of Professional Conduct governing advertising, solicitation and communication
concerning a lawyer's services provide adequate and appropriate guidance to a lawyer using the
Internet. For example, the Committee views an Internet home page as the electronic equivalent
of a telephone directory "yellow pages" entry and other material included in the web site to be
the functional equivalent of the firm brochures and similar materials that lawyers commonly
prepare for clients and prospective clients. An Internet user who has gained access to a lawyer's
home page, like a yellow pages user, has chosen to view the lawyer's message from all the
messages available in that medium. Under these circumstances, such materials are not a
"communication directed to a specific recipient" that would implicate Rule 7.3 and its provisions
governing direct contact with prospective clients. Thus, with respect to a web site, Rule 7.1,
prohibiting false or misleading statements concerning a lawyer's services, and Rule 7.2,
regulating advertising in the public media, are sufficient to guide lawyers and to protect the
public.

On the other hand, lawyer participation in an electronic bulletin board, chat group, or
similar service, may implicate Rule 7.3, which governs solicitation, the direct contact with
prospective clients. The Committee does not believe that merely posting general comments on a
bulletin board or chat group should be considered solicitation. However, of a lawyer seeks to
initiate an unrequested contact with a specific person or group as a result of participation in a
bulletin board or chat group, then the lawyer would be subject to the requirements of Rule 7.3.
For example, if the lawyer sends unrequested electronic messages (including messages in
response to inquiries posted in chat groups) to a targeted person or group, the messages should
be plainly identified as advertising material.
Finally, lawyers participating in chat groups or other on-line services that could involve
offering personalized legal advice to anyone who happens to be connected to the service should
be mindful that the recipients of such advise are the lawyer's clients, with the benefits and
burdens of that relationship. In Opinion No. 94-11 (November 1994), the Committee addressed
an analogous situation arising out of a "call-in" legal advice service as follows:
The committee believes that callers to the legal advice service are clients of the
law firm who are entitled to the protection of clients afforded by the Rules of
Professional Conduct. However, it does not appear that either the law firm or the
cellular telephone service makes any effort to determine the identity of the callers
and check for potential conflicts of interest prior to the time that the callers'
questions are asked and the legal advice is given. (Presumably the callers'
identities are revealed after the advice is rendered through the billing process. If
the cellular telephone company handles the billing for the law firm, this procedure
may also violate client confidences. See ISBA Opinion No. 93-04) Under these
circumstances, it would be possible for the law firm to give legal advice to callers
whose interest are directly adverse to other firm clients, including other callers, in
violation of Rule 1.7(a), or whose interests are materially adverse to the firm's
former clients, including other callers, concerning the same or a substantially
related matter, in violation of Rule 1.9
Lawyers participating in similar activity over the Internet would be subject to the same concerns
expressed in Opinion No. 94-11.
For these reasons, the Committee believes that Illinois lawyers may appropriately make
use of the Internet in serving and communicating with clients and prospective clients subject to
the existing rules governing confidentiality, advertising and solicitation.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky
Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor
rule). The Rule provides that formal opinions are advisory only.