What did this 1998 opinion require before a client chose email for attorney-client communications?

Plain-English summary

A lawyer challenged an earlier opinion about email communication with clients. The answer said email’s relative novelty was a valid reason to distinguish it from familiar communication methods.

The lawyer owed a duty to explain email risks to a client with only rudimentary knowledge of the technology. The explanation need not be technical, but had to describe the nature of the risk before the client chose the method. An official note points to a 2007 Rule 4-1.6 amendment and Comment [16].

Currency note

This opinion was issued in 1998, before Missouri’s 2007 revisions to the Rules of Professional Conduct. Later amendments or opinions may have changed the analysis. Treat this page as historical context and verify current rules before relying on it. The official Rule 4-1.9 and 4-1.10 reference notes identify July 1, 2007 amendments.

Common questions

Q: Did the explanation have to be technical?

A: No. The opinion expressly said it did not.

Q: When did the client need the explanation?

A: Before deciding that email was an acceptable communication method.

Background and rules framework

The official note identifies Rule 4-1.6 and its later Comment [16].

Citations and references

Missouri Rules of Professional Conduct:

• Rule 4-1.6

See also

• Missouri Informal Op. 990007: Client Email Risks

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/980137/

• Rule revision reference: Missouri Informal Opinion 20030007

Original opinion text

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

Reference Note: Effective July 1, 2007, Rule 4–1.6 was amended and new comments adopted. This informal opinion should be read with Comment [16] to the amended Rule.

QUESTION: Attorney is requesting clarification of 970230 concerning communicating with a client using e-mail. Attorney feels that the previous opinion is an overreaction. Would OCDC reconsider its position?

ANSWER: The recency of the development of e-mail communication is a valid basis for a distinction between forms of communication. It is certainly acceptable to advise clients of the relative risks of interception of communications by regular telephones, etc. However, the attorney owes a duty to the client to advise of the risks of attorney/client communications through a technology about which many clients only have a rudimentary knowledge. This advice does not have to be technical in nature. The advice must be adequate to inform the client of the nature of the risk before the client makes the decision that it is acceptable to use that method of communication.