Can a lawyer send client documents and confidences by fax without violating the duty of confidentiality?

Plain-English summary

A lawyer asked about complying with RPC 1.6 when using a facsimile machine to transmit documents, confidences, or secrets to a client. The committee decided that, for purposes of RPC 1.6, communicating by facsimile machine is more similar to communicating by mail than by cordless telephone.

The committee explained that cordless telephones present more problems in protecting client confidences because users have no protectable expectation of privacy, while attorneys using facsimile machines can take protective measures to maintain client confidences and secrets. As with any client communication, the committee said the attorney is responsible for protecting privileged information.

Currency note

This opinion was issued in 1995, before the Washington State Bar Association's adoption of the 2006 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 Treat this page as historical context, not current guidance.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. RPC 1.6 corresponds to ABA Model Rule 1.6 on confidentiality of information.

Common questions

Q: Can a lawyer fax confidential client documents?

A: The committee said faxing is more like mail than a cordless telephone for purposes of RPC 1.6, so it can comply with the rule when the lawyer takes protective measures.

Q: Why did the committee treat a fax differently from a cordless phone?

A: The committee said cordless telephone users have no protectable expectation of privacy, while a lawyer using a fax machine can take protective measures to maintain client confidences and secrets.

Background and rules framework

The opinion applied RPC 1.6 (confidentiality of information, corresponding to ABA Model Rule 1.6). The committee analyzed a then-newer communication technology by analogy, treating a fax as comparable to mail rather than to a cordless telephone, and placing responsibility on the attorney to protect privileged information.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.6 (confidentiality of information); Washington RPC 1.6

See also

• WA Ethics Op. 1235: Open Office Layout and Privacy of Communications
• WA Ethics Op. 1036: Disclosing Client Names to a Bank for Financing

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=689

Original opinion text

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

Advisory Opinion: 1607
Year Issued: 1995
RPC(s): RPC 1.6
Subject: Preserving client confidences and secrets; use of facsimile machines

The Committee reviewed your inquiry regarding an attorney's compliance with RPC 1.6 when using a facsimile machine to transmit to the client documents, confidences or secrets. To comply with RPC 1.6, the Committee decided that communicating by facsimile machine is more similar to communicating by mail than by cordless telephone. The use of cordless telephones presents more problems in protecting client confidences because users have no protectable expectation of privacy, while attorneys using facsimile machines can take protective measures to maintain client confidences and secrets. As with any client communication, the attorney is responsible for protecting privileged information.