Can an Ohio lawyer email clients about confidential matters without encrypting the message?

Plain-English summary

The Board addressed whether emailing clients without encryption violated the DR 4-101 duty to preserve confidences and secrets. It first held that DR 4-101, though adopted in 1970 before email existed, applied to email because it established a broad duty covering all methods of communication. The Board then described how Internet and non-Internet email travel and the associated security concerns (sniffing, spoofing, cracking), while noting that the volume and packet-based routing of Internet email make interception difficult and require time, money, equipment, and a willingness to act illegally.

The Board surveyed other jurisdictions, observing that the trend among advisory bodies (including the District of Columbia, Illinois, New York, North Dakota, and Vermont) was that unencrypted email is ethically proper under most circumstances, with some states (such as Arizona) more cautious and others (South Carolina, Iowa) having reconsidered earlier views.

The Board reached its conclusion on four grounds: email had become a popular and efficient method of communication; the risk of interception is not unique to email, as mail and telephone communications can also be intercepted yet are considered reasonable; interception of electronic communication is a crime under federal law (18 U.S.C. 2511) and Ohio law (R.C. 2933.52(A)); and case law supports a reasonable expectation of privacy even where a communication can be intercepted (citing State v. Bidnost, 71 Ohio St. 3d 449 (1994)). For these reasons the Board concluded encryption was not mandated under the rule. It added that an attorney must still use professional judgment about the method of each communication, since matters of extraordinary sensitivity, client preferences, evolving technology, and developing law may make encryption or a different method appropriate.

Currency note

The Board's status list flags this opinion as a CPR Opinion that provides advice under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007.

This opinion issued in 1999, before that revision. The duty it analyzed now appears at Ohio Prof. Cond. R. 1.6, which has itself been amended to address technological safeguards. Treat this page as historical context, not current guidance. Do not rely on the DR 4-101 framing as current Ohio law; verify against current rules before acting.

Common questions

Q: Did unencrypted email to clients violate Ohio's confidentiality rule?

A: No. The opinion concluded that communicating with clients through unencrypted email did not violate the DR 4-101 duty to preserve confidences and secrets.

Q: Why did the Board decide encryption was not required?

A: The opinion reasoned that interception risk is not unique to email, that intercepting electronic communication is illegal under federal and Ohio law, and that a reasonable expectation of privacy can exist even for communications capable of interception.

Q: Did the opinion say email was always appropriate?

A: No. The opinion stated that the attorney must use professional judgment for each communication, and that for matters of extraordinary sensitivity an attorney might choose not to use email, or might choose to encrypt.

Q: Did Ohio follow other states on this question?

A: The opinion noted that the trend among advisory bodies in other states and the District of Columbia was that unencrypted email is ethically proper under most circumstances, and Ohio aligned with that trend.

Background and rules framework

The opinion interprets former Ohio Code of Professional Responsibility DR 4-101 (preservation of client confidences and secrets), the predecessor to the confidentiality rule now found at Ohio Prof. Cond. R. 1.6 (Model Rule 1.6). It also discusses federal and Ohio statutes criminalizing interception of electronic communications.

Citations and references

Rules of Professional Conduct:

• Former Ohio Code of Professional Responsibility DR 4-101(A) through (D)

Statutes:

• 18 U.S.C.A. 2511 (interception of electronic communications)
• Ohio Rev. Code Ann. 2933.52(A), (B)(2)

Cases:

• State v. Bidnost, 71 Ohio St. 3d 449 (1994), expectation of privacy in cordless telephone communications

Other opinions cited:

• D.C. Bar Op. 281 (1998); Illinois State Bar Ass'n Op. 96-10 (1997); New York State Bar Ass'n Op. 709 (1998); Ass'n of the Bar of the City of New York Formal Op. 1998-2 (1998); State Bar Ass'n of North Dakota Op. 97-09 (1997); Vermont Bar Ass'n Op. 97-5; State Bar of Arizona Op. 97-04 (1997); South Carolina Bar Ops. 94-27 (1995), 97-08 (1997); Iowa State Bar Ass'n Ops. 96-1, 96-33, 97-1

See also

• Ohio BPC Op. 1999-009: Online Legal Advice by Email for a Fee
• Ohio BPC Op. 1999-003: Attorney Listing in an Online Membership Directory

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-99-002.pdf

Original opinion text

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

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

                                         OFFICE OF SECRETARY


                                     OPINION 99-2
                                   Issued April 9, 1999

[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded
by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]

SYLLABUS: A lawyer does not violate the duty to preserve confidences
and secrets under DR 4-101 of the Ohio Code of Professional Responsibility
by communicating with clients through electronic mail without encryption.
An attorney must use his or her professional judgment in choosing the
appropriate method of each attorney-client communication.

OPINION: This opinion addresses whether it is ethically proper under the
Ohio Code of Professional Conduct for a lawyer to communicate with
clients through electronic mail without encryption.

    Does a lawyer violate the duty to preserve confidences and
    secrets under DR 4-101 of the Ohio Code of Professional
    Responsibility by communicating with clients through
    electronic mail without encryption?

Electronic mail communication is referred to as e-mail. Electronic mail
communication has established a presence in the practice of law. A survey
by the Legal Technology Resource Center of the American Bar Association
reports that 52.7% of responding small law firms use the Internet or an
online service to communicate with colleagues and 53.6% use the Internet or
an online service to communicate with clients. The survey also reports that
83.7% of responding large law firms use the Internet or an online service to
communicate with colleagues and 93.5% use the Internet or an online
service to communicate with clients. See American Bar Association, Legal
Technology Resource Center, 1998 Small Firm Technology Survey, 1998
Large Firm Technology Survey.

The widespread use of electronic mail communication is accompanied by
uncertainties regarding the implications of this new technology on the
practice of law. Will an attorney’s use of electronic mail communication
Op. 99-2 2

preserve client confidences and secrets, protect the attorney-client privilege,
and meet the standards of practice within the legal profession? Or, will an
attorney who communicates with or about clients by electronic mail violate
confidences under the ethics rules, cause a waiver of the attorney-client
privilege, or incur malpractice liability?

These issues generate great interest among the bar. A resolution, drafted by
the Young Lawyers Division of the American Bar Association and approved
by the ABA delegates on August 4, 1998, calls upon courts of all
jurisdictions to accord lawyer-client electronic mail communications the
same expectations of privacy and confidentiality as lawyer-client
communications by mail, telephone, and other traditional methods of
communication.

Yet, these issues cannot all be resolved within this opinion. Courts and
legislators will guide and determine attorney-client privilege issues and
attorney malpractice liability issues. For discussion of attorney-client
privilege and malpractice issues see David Hricik, Confidentiality and
Privilege in High-Tech Communications, 8 The Professional Lawyer 1, 17-
27 (1997); David Hricik, Lawyers Worry Too Much About Transmitting
Client Confidences by Internet E-mail, XI Geo. J. Legal Ethics, 459, (1998);
Kurt X. Metzmeier and Shaun Esposito, How to Avoid Losing Your License
on the Information Superhighway: Ethical Issues Raised by the Use of the
Internet in The Practice of Law, Kentucky Bar Association Bench & Bar,
Spring 1998, at 14; Joan C. Rogers, Ethics, Malpractice Concerns Cloud E-
Mail, On-Line Advice, 12 Current Reports, Laws. Man. on Prof. Conduct
(ABA/BNA), 59 March 6, 1996; Electronic Communications, Laws. Man.
on Prof. Conduct (ABA/BNA), 55:401 (Oct. 30, 1996).

This opinion advises solely upon the ethical concern of whether an attorney
violates his or her duty to preserve confidences and secrets under DR 4-101
of the Ohio Code of Professional Responsibility by communicating with
clients through electronic mail without encryption. The opinion is limited in
this manner because the Board’s authority under Gov. Bar R. V §2(C) is to
advise upon the application of the Code of Professional Responsibility.

Disciplinary Rule 4-101 of the Ohio Code of Professional Responsibility
requires the preservation of client confidences and secrets. Division (A)
defines confidences and secrets. Division (B) prohibits attorneys from
knowingly revealing or improperly using a confidence or secret. Division
(C) sets forth limited circumstances in which disclosure is permitted, one of
Op. 99-2 3

which is client consent. Division (D) requires reasonable care by a lawyer to
prevent employees, associates, and others from disclosing or using
confidences and secrets.

In all likelihood, attorney communication with clients by electronic mail was
not contemplated when DR 4-101 was adopted by the Supreme Court of
Ohio on October 5, 1970; nevertheless, the rule applies. The rule as written,
establishes a broad duty to preserve confidences and secrets that applies to
all methods of communication. The duty extends to communications by
electronic methods just as it extends to other forms of communication used
by an attorney.

Since DR 4-101 applies to e-mail communications, what are the attorney’s
obligations under the rule? Does an attorney who communicates by
electronic mail to clients fulfill his or her ethical duty under DR 4-101 to
preserve confidences and secrets? Or, do risks of interception make an
attorney’s expectations of confidentiality in e-mail communication so
unreasonable that the duty to preserve confidences and secrets is violated
unless messages are encrypted? (Encryption refers to the encoding of
messages and is discussed infra.)

Before determining an attorney’s obligations under the rule, it is first
necessary to consider how e-mail is transmitted. A distinction is often made
between Internet e-mail and non-Internet e-mail. Non-internet e-mail is
transmitted through local area networks (such as a law firm’s own internal
network system) or through commercial networks referred to as online
service providers (such as America Online).

A local area network is considered a private network because its use is
limited to those employed by a firm or an organization. The e-mail message
travels from the sender’s computer to the recipient’s computer over land-
based telephone lines. For example, a member of a law firm may use the
firm’s local network to communicate with another firm member regarding a
client matter. Or, an in-house counsel might use the corporation’s internal
network to communicate with the corporate client.

An online service provider is considered a semi-public network. Members
of the public who subscribe to a service pay a fee for access to the on-line
service. E-mail from one member of an on-line service to another member
of the online service travels from the sender’s computer across land-based
telephone lines directly into the recipient’s password protected mailbox. If
Op. 99-2 4

the sender and recipient are members of the same online service, the e-mail
message does not travel over the Internet to reach its destination. But, if the
sender and the recipient are members of different on-line services, the
message travels out over the Internet before reaching the recipient’s
computer.

Internet e-mail is transmitted differently. Internet e-mail travels from a
sender’s host computer over the Internet through “routers” (intermediate
computers owned by third parties) before reaching a recipient’s mailbox.
The message does not travel as a whole. The sender’s computer breaks the
e-mail document into small packets of data. The packets travel from
computer to computer through the intervening routers depending on which
computer is least busy. Each packet may travel through a different router.
The message is re-assembled by the recipient’s computer.

To summarize, non-internet e-mail travels from the sender’s host computer
to the recipient’s computer over land-based telephone lines and does not
travel outside the provider’s network. In contrast, Internet e-mail does not
go directly from a sender’s computer over land-based telephone lines to a
recipient’s password protected mailbox. Internet e-mail travels in packets
rather than as a whole across interconnected networks of computers which
route the message to the recipient’s computer.

There are security concerns with both Internet mail and non-Internet mail.
Concerns with Internet mail are that a message may be captured as it travels
over the Internet (“sniffing”) or that an intermediate computer may be
programmed to act as the recipient’s host (“spoofing”). With both Internet
e-mail and non-internet mail there are concerns that security may be
compromised at either the sender’s computer or at the recipient’s computer.
Passwords may become known to others, messages may be left in open view
on the sender’s or the recipient’s computer screen, unauthorized access to
the computer system may occur (“cracking”). There are also concerns raised
regarding e-mail monitoring by network system administrators.

Yet, the degree of security risk is difficult to determine. As to Internet e-
mail, the large volume of e-mail, the way in which it travels over the Internet
in packets rather than in its entirety, and the dynamic routing of the packets
through a variety of intermediate computers are factors contributing to
difficulty of interception. The interception of both Internet and non-Internet
e-mail, requires an investment of time, money, and equipment and a
willingness on the part of the interceptor to engage in illegal activity.
Op. 99-2 5

For discussion on the transmission of e-mail and security concerns see
Kenneth E. Johnson, American Bar Association Law Practice Management
Section, The Lawyer’s Quick Guide to E-mail, 93-105 (1998); David Hricik,
Confidentiality and Privilege in High-Tech Communications, 8 The
Professional Lawyer 1, 17-27 (1997); David Hricik, Lawyers Worry Too
Much About Transmitting Client Confidences by Internet E-mail, XI Geo. J.
Legal Ethics, 459, (1998); Janlori Goldman, Privacy on the Internet, Trial,
June 1997, at 20-25; Robert L. Jones, Client Confidentiality: A Lawyer’s
Duties with Regard to Internet E-Mail (Aug. 16, 1995)
http://www.computerbar.org/netethics/bjones.htm.

Encryption is raised in response to security concerns. Encryption refers to
the encoding of e-mail messages to make the message unreadable by anyone
other than the sender and the intended recipient. Encryption involves the use
of a mathematical function, an algorithm, to scramble messages. Encryption
software programs are commercially available. As with other technologies,
techniques for encryption are evolving.

For discussion of encryption see Kenneth E. Johnson, American Bar
Association Law Practice Management Section, The Lawyer’s Quick Guide
to E-mail, 93-105 (1998); David Hricik, Lawyers Worry too Much About
Transmitting Client Confidences by Internet E-mail, XI Geo. J. Legal Ethics,
459, 493-508 (1998); Timothy Tomlinson, Public Key Cryptography: How
It Works, Computer Law Strategist, June 1997, at 3; Charles R. Merrill,
Cryptography for Attorneys-Beyond Clipper (1994)
http://www.law.vill.edu/chron/articles/merrill.html; Kevin J. Connolly,
Cryptography Can Ensure E-Mail Technology, The National Law Journal,
Monday Jun. 9, 1997, at B13-B15.

Scholars and commentators debate whether encryption should be mandatory
for attorney-client communications. Proponents view encryption as a
reasonable precaution an attorney can take to maintain confidentiality and to
protect attorney-client privilege and/or as a way to prevent unintentional
disclosure and to eliminate arguments about waiver. See e.g., Arthur L.
Smith, E-Mail and the Attorney-Client Privilege (1995)
http://www.abelaw.com/bamsl/lpm/email.htm; Robert L. Jones, Client
Confidentiality: A Lawyer’s Duties with Regard to Internet E-Mail (1995)
http://www.computerbar.org/netethics/bjones.htm.
Op. 99-2 6

Opponents of mandatory encryption object to treating e-mail differently
from other types of communication, pointing out that other forms of
communications, such as phones and mail, can be intercepted. Opponents
also point out that interception requires a lot of time and money to capture a
particular message on the Internet when there are millions sent each day; and
that it is unlawful to intercept an e-mail communication. See e.g., William
Freivogel, Communicating With Or About Clients on the Internet, XII ALAS
News, (Nov. 3 1995); Peter R. Krakaur, Treat E-mail Like Other
Communications: An Argument Against Mandatory Encryption of Attorney-
Client Communications (posted Jan 1, 1998, archived Feb. 1, 1998)
http://www.llrx.com/features/e-mail.htm.

Encryption has practical limitations. The following have been raised as
examples. Both lawyer and client must use compatible encryption
programs. Encryption cannot protect the identity of the sender or recipient
in the header of the message since the router must know this information to
deliver the message. Encryption is not free. Some foreign countries do not
permit encryption messages to be transmitted. As government seeks access
to decryption keys for policy, law enforcement, and security reasons,
encryption may become more vulnerable. See e.g., David Hricik, Lawyers
Worry Too Much About Transmitting Client Confidences by Internet E-mail,
XI Geo. J. Legal Ethics, 459, 493-508 (1998); Jan Hemm Pritchard, E-Mail
Privacy: An Oxymoron? J. Mo. Bar, Jul.-Aug. 1997 at 239, 243; Charles R.
Merrill, Cryptography for Attorneys - Beyond Clipper (1994)
http://www.law.vill.edu/chron/articles/merrill.html.

The trend among advisory bodies in other states (and the District of
Columbia) is that electronic mail without encryption is ethically proper
under most circumstances.

  In the District of Columbia, “[i]n most circumstances,
  transmission of confidential information by unencrypted
  electronic mail does not per se violate the confidentiality rules
  of the legal profession. However, individual circumstances
  may require greater means of security.” District of Columbia
  Bar, Op. 281 (1998).

  In Illinois, “[l]awyers may use electronic mail services,
  including the Internet, without encryption to communicate with
  clients unless unusual circumstances require enhanced security
  measures.” Illinois State Bar Ass’n, Op. 96-10 (1997).

Op. 99-2 7

 In New York, the state bar association advised that “lawyers
 may in ordinary circumstances utilize unencrypted Internet e-
 mail to transmit confidential information without breaching
 their duties of confidentiality under Canon 4 to their clients, as
 the technology is in use today. Despite this general conclusion,
 lawyers must always act reasonably in choosing to use e-mail
 for confidential communications, as with any other means of
 communication. Thus, in circumstances in which a lawyer is
 on notice for a specific reason that a particular e-mail
 transmission is at heightened risk of interception, or where the
 confidential information at issue is of such an extraordinarily
 sensitive nature that it is reasonable to use only a means of
 communication that is completely under the lawyer’s control,
 the lawyer must select a more secure means of communication
 than unencrypted Internet e-mail.” New York State Bar Ass’n,
 Op. 709 (1998). The city bar association advised that “[a] law
 firm need not encrypt all e-mail communications containing
 confidential client information, but should advise its clients and
 prospective clients communicating with the firm by e-mail that
 security of communications over the Internet is not as secure as
 other forms of communication.” Ass’n of the Bar of the City of
 New York, Formal Op. 1998-2 (1998).

 In North Dakota, “Rule 1.6 of the North Dakota Rules of
 Professional Conduct is not violated by a lawyer who
 communicates routine matters with clients, and/or other lawyers
 jointly representing clients, via unencrypted electronic mail (e-
 mail) transmitted over commercial services (such as America
 Online or MCI Mail) or the Internet unless unusual
 circumstances require enhanced security measures.” State Bar
 Ass’n of North Dakota, Op. 97-09 (1997).

 In Vermont, “[a] lawyer does not violate DR 4-101 by
 communicating with a client by e-mail, including the Internet,
 without encryption.” Vermont Bar Ass’n, Op. 97-5.

One state is reticent in its advice regarding unencrypted electronic
communication with clients.
Op. 99-2 8

  In Arizona, the state bar responded “Maybe” to the question
  “Should lawyers communicate with existing clients, via e-mail,
  about confidential matters?” They advised “it is not unethical to
  communicate with a client via e-mail even if the e-mail is not
  encrypted” but suggested “it is preferable to protect the
  attorney/client communications to the extent it is practical.”
  The committee suggested using a password known only to the
  lawyer or client, using encryption software, or at a minimum
  using a cautionary statement such as “confidential” and
  “Attorney/Client Privileged” either in the “re” line or beginning
  the communication. An additional suggestion was to caution
  clients about transmitting highly sensitive information via e-
  mail if the e-mail is not encrypted or otherwise secure from
  unwanted interception. Attorneys were “reminded that e-mail
  records may be discoverable.” State Bar of Arizona, Op. 97-04
  (1997).

Several states have reconsidered their initial views on the issue.

  In South Carolina, the bar association first advised that “unless
  certainty can be obtained regarding the confidentiality of
  communications via electronic media, that representation of a
  client, or communication with a client, via electronic media,
  may violate Rule 1.6, absent an express waiver by the client.”
  South Carolina Bar, Op. 94-27 (1995). Later, the bar advised
  that “[t]here [now] exists a reasonable expectation of privacy
  when sending confidential information through electronic mail
  (whether direct link, commercial service, or Internet). Use of
  electronic mail will not affect the confidentiality of client
  communications under South Carolina Rule of Professional
  Conduct 1.6.” South Carolina Bar, Op. 97-08 (1997).

  In Iowa, the bar association rescinded Formal Op. 95-30 and
  replaced it with Formal Op. 96-1 advising that “with sensitive
  material to be transmitted on E-mail counsel must have written
  acknowledgment by client of the risk of violation of DR 4-101
  which     acknowledgment      includes     consent    for   the
  communication thereof on the Internet or non-secure Intranet or
  other forms of proprietary networks, or it must be encrypted or
  protected by password/firewall or other generally accepted
  equivalent security system.” Iowa State Bar Ass’n, Op. 96-1

Op. 99-2 9

  (1996). See also Iowa State Bar Ass’n Op. 96-33 (1997).
  Later, the bar association amended Opinions 96-1 and 96-33 by
  advising that “with sensitive material to be transmitted on e-
  mail counsel must have written acknowledgment by client of
  the risk of violation of DR 4-101 which acknowledgement
  includes consent for communication thereof on the Internet or
  non-secure Intranet or other forms of proprietary networks to be
  protected as agreed between counsel and client.” Iowa Bar
  Ass’n, Op. 97-1 (1997)

In Ohio, the issue is now addressed herein. In advising upon whether
unencrypted e-mail is a method of communication that fulfills an attorney’s
duty to preserve confidences and secrets under DR 4-101, the Board
considers the following in reaching its interpretation of the ethical
requirements of the rule. First, through the use of computers in the practice
of law, electronic mail communication has become a popular and efficient
method of communication. Second, while there are security risks that e-mail
will be intercepted, the risk of interception is not singular to this one method
of communication. Every method of communication carries with it a risk of
interception. Mail can be intercepted. Telephone messages can also be
intercepted. Land-based telephones may be wiretapped, eavesdropping may
occur by listening through a receiver of a telephone extension, or too loud
voices may be overhead by others. Yet, these forms of communication are
considered reasonable under the rule.

Third, interception of electronic communication is a criminal activity.
Interception of e-mail is illegal under both federal law and state law.
Federal law prohibits interception and use of electronic communication at 18
U.S.C.A. § 2511 (West 1998). Ohio law prohibits purposeful interception of
electronic communication at Ohio Rev. Code Ann. § 2933.52(A) (West
1998). Under both state and federal law the prohibition on interception and
use of electronic communication does not apply to a provider of electronic
service communication while engaged in any activity necessary to the
rendition of the service or to the protection of the rights of the provider of
the service. However, service observing or random monitoring by a
provider is not permitted except for mechanical or service quality control
checks. See Ohio Rev. Code Ann. § 2933.52(B)(2) (West 1998); 18
U.S.C.A. § 2511 (2)(a)(i) (West 1998).

Fourth, there is support in case law for the proposition that a reasonable
expectation of privacy may exist even though a form of communication is
Op. 99-2 10

capable of being intercepted. As an issue of first impression, the Supreme
Court of Ohio considered the rights of Ohio citizens to be free from
unauthorized invasions of their cordless communications. In State v.
Bidnost, 71 Ohio St. 3d 449, 461 (1994), the court held that the “provisions
of R.C. 2933.52(A), prohibiting the purposeful interception of wire or oral
communications through the use of an interception device, apply to cordless
telephone communications that are intentionally intercepted and recorded.”
According to the court the terms of the Ohio statute defining “oral
communications” and “wire communications” clearly encompass cordless
telephone communication. Id. at 460-62. The court questioned the
proposition that people communicating on cordless telephones have no
legitimate expectation of privacy. “Fundamental rights should not be
sacrificed on the altar of advancing technology.” Id. at 462.

To summarize, additional security measures, such as scrambling devices or
encoding methods, have not traditionally been required under DR 4-101 for
other forms of communication frequently used by attorneys, even though the
communication may be susceptible of interception. Interception is illegal.
An expectation of privacy is not per se unreasonable particularly with
communication methods that are illegal to intercept. For these reasons it is
the Board’s view that encryption of electronic messages is not mandated
under the rule.

Even so, an attorney must use his or her professional judgment to determine
the appropriate method of each attorney-client communication. Just as there
may be some instances in which an attorney would not communicate by
telephone or mail, there may be some circumstances under which an
attorney would choose not to communicate by e-mail whether encrypted or
not, for example, matters of extraordinary sensitivity. Likewise, there may
be some circumstances under which an attorney may choose to encrypt a
message. The nature of the communication will be relevant in choosing the
method of communication. Client preferences will also be relevant in
determining the method of communication. Evolving technology will
influence communication decisions. Developing case law and statutory law
will be relevant as well. Accepting responsibility for choosing the most
appropriate method of communication is a duty of each member of the legal
profession.

In conclusion, the Board advises that a lawyer does not violate the duty to
preserve confidences and secrets under DR 4-101 of the Ohio Code of
Professional Responsibility by communicating with clients through
Op. 99-2 11

electronic mail without encryption. An attorney must use his or her
professional judgment in choosing the appropriate method of each attorney-
client communication.

Advisory Opinions of the Board of Commissioners on Grievances and
Discipline are informal, nonbinding opinions in response to prospective
or hypothetical questions regarding the application of the Supreme
Court Rules for the Government of the Bar of Ohio, the Supreme Court
Rules for the Government of the Judiciary, the Code of Professional
Responsibility, the Code of Judicial Conduct, and the Attorney’s Oath
of Office.