Can a lawyer use a free email service, like Gmail, that scans message content to display targeted ads, given client confidentiality duties?

Plain-English summary

Some email providers offer free or low-cost service in which the provider's computers scan messages for keywords and display targeted advertising alongside them (the model used by web-mail services of the era). The committee was asked whether a lawyer's confidentiality duty under DR 4-101 permits using such a service for client email.

Starting from N.Y. State 709 (1998), which held that a lawyer may ordinarily use unencrypted internet email for confidential information because there is a reasonable expectation of privacy, the committee concludes the scanning model does not change the analysis where the provider's published privacy policy means no individual other than the sender and recipient reads the messages or receives the targeted ads. In that case the risk to confidentiality is not meaningfully different from using any other email provider, so DR 4-101 does not bar the practice. The committee notes the targeted ads go only to service users who presumably chose to receive them, so clients are not "disadvantaged" within DR 4-101(B)(2).

The committee would reach the opposite result if human beings reviewed the emails, or if the provider reserved the right to disclose the emails or their substance to third parties without the sender's permission or a lawful judicial order. It addresses the argument that selecting such a provider is an improper "use" of client confidences for a third party's benefit under DR 4-101(B)(3), and rejects it: the incidental use is no more within the rule than the exposure of confidences to litigation-support or other service vendors, citing EC 4-3. A lawyer must exercise due care in selecting the provider and must stay alert; if the lawyer learns the provider is materially departing from conventional privacy policies or using scanned information in a way that, unlike ad generation, puts confidentiality at risk, continued use would not comport with DR 4-101.

In practice

The opinion holds, under the former Code as it stood at the time, that automated, computer-only scanning of email content to generate advertising does not by itself breach the DR 4-101 confidentiality duty, because it does not increase the risk that others gain access to the messages. The committee frames the permission with conditions: no human review, no provider-reserved right to disclose, and the lawyer's ongoing due care in selecting and monitoring the provider. If those conditions fail, the analysis changes.

Common questions

Q: Can a lawyer use a free email service that scans messages to display ads?

A: Yes. The committee concludes that where the provider's computers scan messages only to generate advertising and no individual other than sender and recipient reads them, the confidentiality duty under DR 4-101 does not preclude the lawyer's use of the service.

Q: When would such a service not be acceptable?

A: The committee states the opposite conclusion would follow if humans reviewed the emails, or if the provider reserved the right to disclose the emails or their substance to third parties without the sender's permission or a lawful judicial order.

Q: Is using such a provider an improper "use" of client confidences for a third party's benefit?

A: No. The committee rejects that reading of DR 4-101(B)(3), treating the incidental use as no different from confidences exposed to litigation-support or similar vendors, and citing EC 4-3 on giving limited information to outside agencies with due care.

Background and rules framework

The opinion interprets DR 4-101 (preservation of client confidences and secrets, the analogue of ABA Model Rule 1.6), including DR 4-101(B)(2) and (B)(3), with EC 4-3 on disclosing limited information to outside service agencies. It builds directly on N.Y. State 709 (1998), the committee's foundational opinion on unencrypted internet email.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• Former Code DR 4-101; DR 4-101(B)(2), (B)(3); EC 4-3

Other opinions cited:

• N.Y. State 709 (1998): a lawyer may ordinarily use unencrypted internet email for confidential information

See also

• NY State Bar Op. 842: Using an outside online storage provider for client confidences
• NY State Bar Op. 825: EAP third-party payor legal services by phone

Source

• Landing page: https://nysba.org/ethics-opinion-820/