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.
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