Must a lawyer warn a client who emails the lawyer from an employer-owned computer or account that the communications may not be private?

Plain-English summary

The committee was asked whether a lawyer has an obligation to advise a client that confidentiality may be jeopardized when the client uses an employer-provided or employer-owned computer, communications device, or email account to communicate with the lawyer. The committee answered yes, and located the obligation at the point when the lawyer believes there is a significant risk that a third party will access the communications.

The committee reasoned from RPC 1.6(a), which (absent an exception) bars a lawyer from revealing information relating to the representation without the client's informed consent, and from Comment 17, which requires a lawyer transmitting such information to take reasonable precautions to prevent it from reaching unintended recipients. Because clients may lack a reasonable expectation of privacy on an employer's system, communications there risk being received or reviewed by the employer or other third parties. The committee tied the warning duty to RPC 1.4(b), which requires a lawyer to explain a matter to the extent reasonably necessary to let the client make informed decisions, including the decision whether to use a method of communication that third parties may access, particularly if the lawyer has reason to believe the client is unaware of that risk. The committee concluded that the lawyer must give appropriately tailored advice to protect the confidentiality of the communications, citing ABA Formal Opinion 11-459.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee held that a lawyer sending or receiving substantive communications with a client must warn the client about the risk of disclosure to an employer or other third party when the client uses a public or employer-provided device, account, or system, once the lawyer believes there is a significant risk a third party will access them. The opinion identifies the trigger as the lawyer's belief in a significant access risk, and frames the required response as appropriately tailored advice under RPC 1.4(b), grounded in the confidentiality duty of RPC 1.6(a).

Common questions

Q: Does a Washington lawyer have to warn a client about emailing from a work computer?

A: Yes. The committee held that once the lawyer believes there is a significant risk a third party will access the communications, the lawyer must advise a client using an employer-provided or employer-owned device or account that the employer and others may review the messages.

Q: When does the duty to warn arise?

A: The committee located the obligation at the point when the lawyer believes there is a significant risk that a third party will access the communications.

Q: What is the client at risk of losing?

A: The committee said the communications are likely open to review by the employer or other third parties and that attorney-client privilege may be waived for such communications.

Q: What rule requires the warning?

A: The committee grounded the duty in RPC 1.6(a) (confidentiality, with Comment 17 on reasonable precautions) and RPC 1.4(b) (explaining a matter so the client can make informed decisions).

Background and rules framework

The opinion interprets Washington RPC 1.6(a) (Model Rule 1.6, confidentiality, with Comment 17 requiring reasonable precautions against communications reaching unintended recipients) and RPC 1.4(b) (Model Rule 1.4(b), explaining a matter to the extent reasonably necessary for the client to make informed decisions). The committee read these together to require a lawyer to warn a client about using employer-provided or public communications channels once a significant risk of third-party access is apparent. It cited ABA Formal Opinion 11-459 as consistent authority.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Washington RPC 1.6(a) (confidentiality; Comment 17 on reasonable precautions)
• Model Rule 1.4 / Washington RPC 1.4(b) (explaining a matter for informed client decisions)

Other opinions cited:

• ABA Formal Opinion 11-459: duty to protect the confidentiality of email communications with a client

See also

• ABA Formal Op. 99-413: unencrypted email and confidentiality
• ABA Formal Op. 11-460: receiving third-party email with counsel

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1668

Original opinion text

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

Advisory Opinion: 2217
Year Issued: 2012
RPC(s): RPC 1.4(b), 1.6(a),
Subject: Email Security

Question Presented:

“A client uses an employer-provided or employer-owned computer, other communications device, or email account to communicate with a lawyer. Does the lawyer have an obligation to advise the client that confidentiality may be jeopardized?”

Answer:

Yes.

The obligation arises once the attorney believes there is a significant risk that a third party will access the communications. At that time the attorney has an obligation to advise a client using the client’s employer-provided or employer-owned computer or other communications device or email account to communicate with the lawyer that the communications are likely to be open to review by the employer and other third party(ies), and attorney-client privilege may be waived for such communications.

Analysis:

Lawyers and clients often communicate with each other via email and other electronic means, including cellular telephones equipped for text messaging. Often times, clients communicate with a lawyer from “work,” whether inside or outside the workplace, using employer-provided computers or other electronic communications devices. Some employers monitor communications made from “work,” including those made with those mobile communications devices provided by the employer. When a client uses these forms of communication, particularly those provided by an employer or “public” devices, a “third party” may have access to, or monitor these communications with the lawyer.

Absent an applicable exception, RPC 1.6(a) requires a lawyer to refrain from revealing “information relating to the representation of a client unless the client gives informed consent.” RPC 1.6, Comment 2 states further, “A fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation.” This responsibility includes information contained in electronic communications made in the course of representation.

Clients may not be afforded a reasonable expectation of privacy when they use an employer’s computer or other device to send messages to their lawyer or receive messages from their lawyer. This puts any such communications at risk, both unintentionally and unstoppably, of being received or reviewed by the employer or other third parties. As noted in Comment [17] to RPC 1.6, “[w]hen transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients.” RPC 1.4(b) requires that a lawyer explain a matter to a client to the extent reasonably necessary to permit the client to make informed decisions about the representation. One such decision is whether to use a method of communication that may be accessed by third parties, particularly if the lawyer has reason to believe that the client is unaware that may occur.

Conclusion:

A lawyer receiving or sending substantive communications with a client via e-mail or other electronic means must warn the client about the risk of disclosure to the employer or other third party for any communications using a public, or employer provided computer or other workplace device or system once the lawyer believes there is a significant risk that a third party will access the communications. The lawyer must take reasonable care to protect the confidentiality of these communications by giving appropriately tailored advice to the client. See ABA Formal Op. 11-459.