Can a Minnesota lawyer use unencrypted email or a cell phone to send confidential client information?
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This page answers the general question as of 2010. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The opinion concludes that a lawyer may use technological means such as electronic mail and cordless and cellular telephones to communicate confidential client information without violating Rule 1.6 of the Minnesota Rules of Professional Conduct, subject to stated conditions.
The conditions are: email without encryption may be used to transmit and receive confidential client information; digital cordless and cellular telephones may be used to transmit and receive such information when used within a digital service area; and when the lawyer knows, or reasonably should know, that a client or other person is using an insecure means to communicate about confidential client information, the lawyer shall consult with the client about the confidentiality risks of inadvertent interception and obtain the client's consent.
In practice
Under this opinion, as it stood when last amended, a Minnesota lawyer may use unencrypted email and digital cordless or cellular phones within a digital service area to communicate confidential client information without violating Rule 1.6. The opinion directs the lawyer, when the lawyer knows or reasonably should know that a client or other person is using an insecure means to discuss confidential information, to consult the client about the risks of inadvertent interception and to obtain the client's consent.
Common questions
Q: Can a Minnesota lawyer email confidential client information without encryption?
A: Yes. The opinion states unencrypted email may be used to transmit and receive confidential client information without violating Rule 1.6.
Q: Can a lawyer discuss confidential matters on a cell phone?
A: Yes, when using a digital cordless or cellular phone within a digital service area, per the opinion's conditions.
Q: What if the client is using an insecure method?
A: When the lawyer knows or reasonably should know an insecure means is being used, the opinion requires the lawyer to consult the client about the risks of inadvertent interception and obtain the client's consent.
Background and rules framework
The opinion interprets Rule 1.6 of the Minnesota Rules of Professional Conduct (the analog of Model Rule 1.6 on confidentiality of information), applying it to a lawyer's use of common communication technologies. It was adopted in 1999 and amended in 2010, and it reflects the technologies (unencrypted email, digital cordless and cellular phones) addressed at that time.
Citations and references
Rules of Professional Conduct:
- MR 1.6 (confidentiality of information)
- Minnesota RPC 1.6 (confidentiality of information)
See also
- ABA Ethics Op. 498: Virtual Practice
- ABA Ethics Op. 483: Lawyers' Obligations After an Electronic Data Breach
Source
- Landing page: https://lprb.mncourts.gov/lawyers-professional-responsibility-board-opinions/
- Original PDF: https://lprb.mncourts.gov/wp-content/uploads/2024/10/Opinion-19_compressed.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
OPINION NO. 19
USING TECHNOLOGY TO COMMUNICATE
CONFIDENTIAL INFORMATION TO CLIENTS
A lawyer may use technological means such as electronic mail (e-mail) and cordless and
cellular telephones to communicate confidential client information without violating
Rule 1.6, Minnesota Rules of Professional Conduct (MRPC). Such use is subject to the
following conditions:
1.
E-mail without encryption may be used to transmit and receive
confidential client information;
2.
Digital cordless and cellular telephones may be used by a lawyer to
transmit and receive confidential client information when used within a
digital service area;
3.
When the lawyer knows, or reasonably should know, that a client or other
person is using an insecure means to communicate with the lawyer about
confidential client information, the lawyer shall consult with the client
about the confidentiality risks associated with inadvertent interception
and obtain the client's consent.
Adopted: January 22, 1999.
Amended: January 22, 2010.
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