What must a lawyer do to protect client confidences when communicating over a cellular or cordless phone or by email?

Plain-English summary

The opinion addressed a lawyer's confidentiality duty when using communications technology that can be intercepted. Cordless phones broadcast over AM or FM radio signals and can be picked up by a standard radio; cellular calls are less prone to accidental interception but can be captured by a scanner. The first inquiry asked what a lawyer must do when conveying confidential client information over a cellular or cordless phone.

The opinion concluded that Rule 4's duty to protect client confidences extends to communications technology, but does not require a lawyer to use only infallibly secure methods. Drawing an analogy to RPC 133, which allowed disposing of waste paper without a shredder so long as procedures effectively minimize the risk of disclosure, the opinion set two requirements. First, the lawyer must use reasonable care to select a mode of communication that, given the existing circumstances, will best maintain any confidential information conveyed. Second, if the lawyer knows or has reason to believe the communication is over a device susceptible to interception, the lawyer must advise the other parties of the risks of interception and the potential loss of confidentiality. The opinion extended the same analysis to email: although email is not broadcast over public airwaves, it is susceptible to interception by anyone with access to the network and is often protected by no more than a simple password, so the same precautions apply to email and any other insecure means of communication.

Currency note

This opinion was issued in 1995, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Must a North Carolina lawyer avoid cell or cordless phones for confidential client matters?

A: No. The opinion concluded the duty does not require infallibly secure methods, but the lawyer must use reasonable care to choose a mode that best protects confidences under the circumstances.

Q: What if the lawyer knows the line can be intercepted?

A: The lawyer must warn the other parties. The opinion required a lawyer who knows or has reason to believe a device is susceptible to interception to advise the other parties of the interception risk and the potential loss of confidentiality.

Q: Does the same duty apply to email?

A: Yes. The opinion concluded email is susceptible to interception and often protected only by a password, so the same precautions set for phone communications apply to email and other insecure means.

Background and rules framework

The opinion applied North Carolina's then-current Rule 4, the confidentiality provision corresponding to Model Rule 1.6, reading the duty to protect client confidences to extend to the choice of communications technology. It relied on the reasonableness standard from RPC 133 and cited Colorado State Bar Ethics Opinion 92-90.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• North Carolina Rule 4

Other opinions cited:

• RPC 133 (reasonable procedures to minimize disclosure risk)
• Colorado State Bar Ethics Opinion 92-90

See also

• NC Ethics Op. RPC 234: electronic storage of the client's file
• NC Ethics Op. RPC 209: disposing of closed client files

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-215/

Original opinion text

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

Inquiry #1:

Communications by means of cellular and cordless telephones are broadcast over the public airwaves rather than telephone lines. For this reason, a conversation over a cordless or cellular phone may be easily intercepted.

A cordless telephone uses AM or FM radio signals to transmit a communication from the handset to the base unit. This signal can be easily intercepted by a standard AM radio Cordless telephones are, therefore, particularly susceptible to both intentional and unintentional interception. Although less susceptible to unintentional interception, a communication by a cellular telephone can be intentionally intercepted by means of a sophisticated scanner specifically designed for the purpose or by a regular radio scanner, which is available at most electronics stores, that has been modified.

What is a lawyer's ethical responsibility when using a cellular or cordless telephone to communicate client information that is intended to be confidential?

Opinion #1:

A lawyer has a professional obligation, pursuant to Rule 4 of the Rules of Professional Conduct, to protect and preserve the confidences of a client. This professional obligation extends to the use of communications technology. However, this obligation does not require that a lawyer use only infallibly secure methods of communication. Lawyers are not required to use paper shredders to dispose of waste paper so long as the responsible lawyer ascertains that procedures are in place which "effectively minimize the risks that confidential information might be disclosed." RPC 133. Similarly, a lawyer must take steps to minimize the risks that confidential information may be disclosed in a communication via a cellular or cordless telephone. First, the lawyer must use reasonable care to select a mode of communication that, in light of the exigencies of the existing circumstances, will best maintain any confidential information that might be conveyed in the communication. Second, if the lawyer knows or has reason to believe that the communication is over a telecommunication device that is susceptible to interception, the lawyer must advise the other parties to the communication of the risks of interception and the potential for confidentiality to be lost.

lnquiry #2:

What is a lawyer's ethical obligation when using electronic mail to communicate confidential client information?

Opinion #2:

Although electronic mail or "e-mail," is not conveyed over the public airwaves like communications by cordless or cellular telephones, many of the same concerns for client confidences apply to communications by e-mail. E-mail is susceptible to interception by anyone who has access to the computer network to which a lawyer "logs-on" and such communications are rarely protected from interception by anything more than a simple password. In using e-mail, or any other technological means of communication that is not secure, the same precautions must be taken to protect client confidentiality as are set forth in opinion #1 above.

End Notes

• Colorado State Bar Ethics Opinion 92-90.

• Id.