Can a lawyer discuss confidential client matters on a cellular or cordless phone that could be intercepted?

Plain-English summary

Against the backdrop of the early-1990s surge in cellular phone use, the committee considered whether a lawyer may discuss confidential client matters on cellular or cordless telephones that are readily capable of interception. It explained that cellular phones are essentially two-way FM radios whose conversations can be intercepted with cheap, programmable scanners, and that cordless phones are equally susceptible within range, noting that courts in Fourth Amendment cases had repeatedly found no reasonable expectation of privacy in cordless-phone content. While interception and use of intercepted communications are crimes under federal and New York law, the committee observed that an underground industry listens for and sells valuable intercepted conversations. It declined to opine on the legal question of whether a lawyer's expectation of privacy on such phones is reasonable, noting California had recently legislated that attorney-client communications keep their privileged character on cellular or cordless phones.

Anchoring the duty in DR 4-101(B) and EC 4-1, the committee reiterated that a lawyer must hold client confidences and secrets inviolate and take reasonable steps to secure that information against misuse or inappropriate disclosure (citing the Restatement). Because confidentiality may be at risk when sensitive information is transmitted by cellular or cordless phone, and even routine acts like retrieving detailed voice-mail messages can broadcast confidential information, the committee concluded that lawyers should be cautious. As scrambling and encryption technologies emerged, lawyers should consider measures sufficient to make their communications no more susceptible to interception than ordinary land-line calls; at a minimum they should be circumspect and avoid revealing confidences or secrets to the maximum reasonable extent.

The committee added that lawyers should warn a called party, when appropriate, that the lawyer is on a cellular or cordless phone so the party does not divulge sensitive information, and should recognize that even when their own phone is secure, a client or other lawyer may be using an insecure phone and should be cautioned. It concluded that, given the lawyer's solemn duty of confidentiality, lawyers should take steps to avoid inadvertent disclosure of client confidences or secrets through non-private means of communication.

Currency note

This opinion was issued in 1994, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. Confidentiality, including the duty to make reasonable efforts to prevent unauthorized access to or inadvertent disclosure of client information, is now addressed by Rule 1.6, and communications technology has changed substantially since 1994. 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: Can a lawyer talk about confidential client matters on a cell phone?

A: The committee concluded a lawyer should exercise caution, be circumspect, and avoid revealing client confidences or secrets to the maximum reasonable extent when using cellular, cordless, or other readily interceptable devices.

Q: Why are cellular and cordless phones a confidentiality risk?

A: The committee explained that cellular phones are essentially FM radios interceptable with cheap scanners, and cordless phones are interceptable within range, so transmitted information may be intercepted despite laws against eavesdropping.

Q: What steps did the committee suggest?

A: The committee concluded that lawyers should consider measures, such as scrambling or encryption, making communications no more susceptible to interception than land-line calls, and at a minimum should be discreet about client matters.

Q: Should the lawyer warn the person on the other end?

A: The committee concluded that, when appropriate, lawyers should warn a called party that they are on a cellular or cordless phone and should caution clients or other lawyers who may be using insecure phones.

Background and rules framework

The opinion applied New York Code DR 4-101(A) (defining confidences and secrets), DR 4-101(B) (preserving them), and DR 4-101(C)(1), with EC 4-1 on the importance of confidentiality, and drew on the Restatement of the Law Governing Lawyers regarding reasonable steps to secure confidential information. The analysis corresponds to ABA Model Rule 1.6 (confidentiality), which now expressly requires reasonable efforts to prevent unauthorized access and inadvertent disclosure.

Citations and references

Rules of Professional Conduct:

• New York Code DR 4-101(A), DR 4-101(B), DR 4-101(C)(1); EC 4-1 (applied in the opinion)
• MR 1.6 (confidentiality)

Statutes:

• 18 U.S.C. section 2510 et seq.; 47 U.S.C. section 605; New York Penal Law section 250.05 (interception and use of communications)

Cases:

• United States v. Smith, 978 F.2d 171 (5th Cir. 1992), no reasonable expectation of privacy in cordless-phone content
• United States v. Kim, 803 F. Supp. 352 (D. Haw. 1992), aff'd, 25 F.3d 1426 (9th Cir. 1994), cellular interception

Other opinions cited:

• N.Y. City 1994-8, 1986-8, 1986-7: scope of the duty to preserve confidences and secrets
• Illinois 90-7; Iowa 90-44 (1991); Massachusetts 94-5: caution on interceptable communications

See also

• NYC Bar Formal Op. 1994-8: Client Fraud, Withdrawal, and a Former Client's Secrets
• No sibling opinions yet indexed.

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1994-11-confidentiality-use-of-cellular-and-cordless-telephones/