Does a lawyer have to use caller-ID blocking to protect a client's confidentiality when calling from the office?

Plain-English summary

The inquiry concerned the ethical issues raised by caller identification and caller-block technology under RPC 1.6 and 4.3. The committee concluded that the rules do not mandate any particular technological use of caller ID or caller blocking for a law office's phones.

The committee stated that where the lawyer knows the client wishes the fact of representation kept secret, and RPC 4.3 does not require identifying the lawyer as an attorney, the lawyer would have to use a means of communication that would not identify the lawyer as an attorney, except as required by RPC 4.3. It noted that in some circumstances this might mean a call could not be made from the law office unless call blocking were available, and that concerns for client confidentiality and for proper identification where the lawyer's role might be misunderstood require all lawyers to consider the impact of caller ID and blocking features.

The committee framed the inquiry as the recurring question of how technological advances affect a lawyer's ethical obligations: the obligations remain the same, but technology raises new ways they must be implemented. The committee concluded the answer is fact-specific. It added that confidentiality could be satisfied by means other than the phone, or by a phone that could not be identified as an attorney's, and that when contacting an unrepresented third party who might learn the caller is an attorney (and so be misled about the lawyer's role), the lawyer needs to consider the availability of caller ID and *69 and act accordingly.

Currency note

This opinion was issued in 1998, 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 Treat this page as historical context, not current guidance.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. Washington's RPC 1.6 and RPC 4.3 correspond to ABA Model Rules 1.6 (confidentiality) and 4.3 (dealing with an unrepresented person). The technology the opinion discusses (caller ID, *69) reflects 1998 telephony.

Common questions

Q: Is a lawyer required to use call blocking to protect client confidentiality?

A: No. The committee concluded the rules do not require any particular technological use of caller ID or caller blocking; the obligation is to avoid revealing a confidential representation, and the means is fact-specific.

Q: When does caller ID raise a confidentiality problem?

A: Where the client wishes the fact of representation kept secret, the committee said the lawyer must use a means of communication that would not identify the lawyer as an attorney, except as RPC 4.3 requires.

Q: How does this affect calls to unrepresented third parties?

A: The committee said that when an unrepresented third party might determine the caller is an attorney and so be misled about the lawyer's role, the lawyer needs to consider caller ID and *69 and act accordingly under RPC 4.3.

Background and rules framework

The opinion applied Washington RPC 1.6 (confidentiality of a client's confidences and secrets) and RPC 4.3 (dealing with an unrepresented person), corresponding to ABA Model Rules 1.6 and 4.3. The committee treated caller ID and call blocking as an implementation question: the ethical duties are unchanged, but the lawyer must consider how the technology might reveal a confidential representation or mislead a third party about the lawyer's role, and resolve it on the facts.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.6 (confidentiality); Washington RPC 1.6
• ABA Model Rule 4.3 (dealing with an unrepresented person); Washington RPC 4.3

See also

• WA Ethics Op. 1607: Confidentiality and Fax Machines
• WA Ethics Op. 1813: Redacting a Client's Secret
• WA Ethics Op. 1821: Adverse Caller's Voicemail

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1015

Original opinion text

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

Advisory Opinion: 1822
Year Issued: 1998
RPC(s): RPC 1.6; 4.3
Subject: Client confidence or secret; use of caller identification and caller block

The Committee researched and reviewed your inquiry concerning the ethical issues raised by caller identification and caller block technology under RPC 1.6 and 4.3 and determined the following:

Where the lawyer knows that the client wishes the fact of representation kept secret and RPC 4.3 does not require the identification of the attorney as an attorney, the lawyer would have to use a means of communication which would not identify the attorney as a lawyer, except as required by RPC 4.3. This might mean that in some circumstances a phone call could not be made from the law offices unless call blocking were available. The RPCs do not require any particular technological use of caller ID or caller-blocking for a law office's phones. Concerns for client confidentiality and secrets, and proper identification of an attorney under circumstances where the attorney's role might be misunderstood by a third party, require all lawyers to consider the impact of caller ID and complete blocking features in order to fulfill their ethical obligations under PRC 1.6 and 4.3.

In the broad sense, the inquiry simply raises the recurring issue of the effect of technological advances upon a lawyer's ethical obligations. The ethical obligations remain the same but advances in technology may raise new and different ways in which the ethical obligations will have to be implemented. Although the inquirer wished to know whether it is mandatory to use phone blocking in order to fulfill ethical obligations, the real question is, how do you maintain your ethical obligations given technological innovations of caller ID and *69? The answer will be fact specific and depend upon the circumstances.

The ethical obligations of confidentiality could also easily be satisfied by means of communication other than phone or in the alternative, a phone other than one which could be identified as coming from an attorney. Similarly, when an attorney contacts an unrepresented third party, the third party might be able to determine that the caller is an attorney connected to a particular law firm, which in turn might mislead the unrepresented third party about the attorney's role, the calling attorney needs to consider the technological availability of caller ID and *69, and act accordingly. The same issues may arise both when contacting government agencies or when the client has directed that the client's identity and fact of representation not be revealed.