Opinion 2175

A. Questions Presented:

The inquiring attorney asked several questions related to the transmittal of fee agreements using email. The questions follow:

1. Can a client enter into a fee agreement by typing information into an e-mail and sending it to the lawyer?

2. If the completed fee agreement is sent by e-mail, does the lawyer have to take additional security measures to ensure that the contents of the e-mail are kept confidential while the e-mail is in transit from the client’s computer to the lawyer’s computer?

3. If additional security measures are required, what level of security/encryption must be used?

4. If a lawyer enables a client to have access to general information about the client’s case on the lawyer’s website by means of a database like the one at http://dw.courts.wa.gov/index.cfm?fa=home.fmcd&terms=accept, such as the client logging in to determine their court date, does the information have to be encrypted when it travels across the internet?

B. Answer:

The inquiring attorney may arrange for a client to enter into a fee agreement by typing information into an e-mail and sending that e-mail to the lawyer. Where a written fee agreement must be signed by a client, RPC 1.0(n) must be complied with. No additional security precautions are required absent special conditions. If additional security is required, then the attorney must decide upon the level of encryption required.

The data base referred to is a public data base that contains information about the client’s case as well as other cases filed within the Washington State courts system. Information transmitted electronically about the case or from the data base need not be encrypted. See the answers to 1-3 below. But as noted in the answer to question 2, special circumstances may require additional security precautions.

C. Analysis:

Question 1. While there is no specific Rule of Professional Conduct (RPC) addressing the entry of fee agreements by electronic means, an RPC, a Formal Opinion, and the ABA Annotated Rules of Professional Conduct (ABA Annotated Rules) all address the matter generally.

RPC 1.5(b) states, in pertinent part:

“RULE 1.5 FEES

“ … (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation … Upon the request of the client in any matter the lawyer shall communicate to the client in writing the basis or rate of the fee.”

It is not a violation of the RPCs to use e-mails to communicate with clients. Formal Opinion 1962 (2001) allows the use of e-mails in a situation in which an attorney is sending a message to a potential client’s e-mail address with content similar to that of a permitted solicitation letter under RPC 7.3(b).

ABA Annotated Rules 1.6 (5th edition, 2003) states as follows regarding e-mail:

“The ABA Ethics Committee has concluded that a lawyer may communicate with a client via electronic mail without encryption; the expectation of privacy for electronic mail is the same as that for ordinary telephone calls, it reasons, and the unauthorized interception of an electronic message is illegal. … Unusual circumstances involving extraordinarily sensitive information might warrant enhanced security measures like encryption, just as ordinary telephones and other normal means of communication would be deemed inadequate to protect confidentiality in some situations […]” (page 105).

Question 2. If the completed fee agreement is sent by e-mail, does the lawyer have to take additional security measures to ensure that the contents of the email are kept confidential while the e-mail is in transit?

No. RPC 1.6 requires an attorney to protect information related to the representation of the client.

“A lawyer shall not reveal information related to the representation of the client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).”

Comment (17) to RPC 1.6 requires the attorney to take

“reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. […]”

The ABA Annotated Model Rules, cited above, allow the use of e-mail. The recommended practice is to discuss with the client if the client perceives a need for any additional security precautions. Normally, as with telephone calls, there is a reasonable expectation of privacy in the transmittal of e-mails.

Question 3. If additional security measures are required, what level of security/encryption must be used?

Any additional level of security would be for determination by the attorney, based on the circumstances and presumably after consultation with the client.