Was a standard email-consent form alone adequate to explain email confidentiality risks to every client?

Plain-English summary

A lawyer submitted an electronic-mail consent form for review. The opinion doubted a form alone could explain concerns for all clients without oral communication.

It said appropriateness depended on where clients sent and received email and on the particular message. Plain-language discussion needed to address interception and access to stored mail, including shared home accounts, local computer files, and workplace settings. The opinion cited several earlier informal opinions on the topic.

Currency note

This opinion was issued in 1999, 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 opinion approve one universal consent form?

A: No. It considered additional oral communication likely necessary.

Q: Was interception in transit the only concern?

A: No. It also discussed access to stored mail and shared accounts or workplaces.

Background and rules framework

The published answer discussed confidentiality risks without citing a numbered rule.

See also

• Missouri Informal Op. 20000103: Website Email

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/990007/

• Rule revision reference: Missouri Informal Opinion 20030007

Original opinion text

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

QUESTION: Attorney has submitted a electronic mail consent form for approval. Is this form appropriate?

ANSWER: It is unlikely that any form could be developed which would adequately explain the concerns for all clients, without additional oral communication. Whether e-mail communication is appropriate may depend on the setting in which the client will send and receive e-mail as well as the nature of the particular communication. Any communication with the client regarding this subject should be in plain language, as much as possible, and should discuss the various ways in which e-mail might be intercepted or accessed by someone else. E-mail is not the same as other types of communications because it is so new that many people are not aware of the basic risks of interception through technology or access. Informal Opinions 980137, 980029, 970230 970161 and 970010, also address this topic. The risk that e-mail will be intercepted as it is actually traveling on the internet is only one type of risk. One example of another type of risk would be a client who sends and receives e-mail from a home computer. That client may not be aware of the risk of having someone obtain that e-mail through access to the same internet account or to e-mail stored on the computer itself. Computers are often set up to store all e-mail sent and received. Additionally, many computers create “temporary” files which essentially form a temporary backup system. A client may be unaware of these possibilities or may not have considered them. Whether these concerns will be significant to a particular client will depend upon the nature of the legal matter and communication. Clients who send and receive e-mail from the work place will need to consider similar types of issues but the risks of access, etc., will vary greatly depending on the work setting.