Ezel / Ethics Opinions / OCBAR

What did Orange County's 1997 opinion say about client calls, email, and fax confidentiality?

Short answer The opinion permits cellular calls and fax use with attention to confidentiality, encourages but does not require email encryption, and says a fax legend cannot cure a misdirected transmission.
Bar
OCBAR
Issued
1997
Source
View official page

Apply this to your situation

This page answers the general question as of 1997. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.

Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as an official web page) is the authoritative source for any reliance.
View original ethics opinion (official page)

Plain-English summary

The committee examines a lawyer's routine client communications by cellular phone, email, and fax. It frames the question through the duty to preserve client confidences and the risk that a third party may overhear or receive a communication.

The opinion does not prohibit cellular telephones. It says the sensitivity of the information and risk of being overheard should limit what is discussed by phone. It encourages encryption for email but does not state that encryption is required.

The opinion also permits fax transmission of confidential documents. A confidentiality statement or page marking may alert recipients to the information's status, but the committee says it does not absolve counsel of the consequences of sending a fax to the wrong destination.

Currency note

This opinion was issued in 1997, before California's 2018 revisions to the Rules of Professional Conduct. The State Bar's official rules page says the new rules became effective November 1, 2018. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Did the opinion forbid client conversations by cellular phone?

A: No. It permits them while addressing the risk that sensitive information may be overheard.

Q: Did it require encrypted email?

A: No. The opinion encouraged encryption but did not require it.

Q: Does a fax confidentiality legend resolve a wrong-number fax?

A: No. The committee says the legend may alert a recipient but does not remove the consequences of misdirection.

Background and rules framework

The opinion cites California Business and Professions Code section 6068(e) on client confidences. Its applicable-rules list prints “Disciplinary Rule 3-310(A)” alongside a competence quotation; that designation is retained here as printed in the source rather than silently corrected.

Citations and references

Rules of Professional Conduct:

  • California “Disciplinary Rule 3-310(A)” as printed in the opinion
  • ABA Model Rule 1.6 comment

Statutes:

  • California Business and Professions Code section 6068(e)

See also

Source

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