Inquiries:

1) How do different state bar associations view a lawyer's use of cordless or cellular telephones?

2) Conflicts of interest between legal services staff lawyers and affiliated pro bono panel lawyers.

Inquiry #1: Can you tell me more about cellular telephones and client confidentiality?

Response: As a footnote to the excellent articles, "High-Tech Ethics and Malpractice Issues" by Peter R. Jarvis and Bradley F. Tellam (1996 Symposium Issue of The Professional Lawyer) and "Confidentiality and Privilege in High Tech Communications" by David Hricik (Volume 8, Number 2, The Professional Lawyer, February 1997), I thought it might be of interest to "Ask ETHICSearch" readers to see excerpts from the full texts of the various state and local bar

association ethics opinions that have been issued on the topic of a lawyer's use of cellular and/or cordless telephones.

Arizona Opinion 95-11 (1995) and New York City Opinion 1994-11 (1994) state that a lawyer should exercise caution when discussing confidential client information while using a cellular phone. The Arizona Bar Association opinion stated:

Just as a lawyer must not discuss sensitive matters in a crowded restaurant, so he or she must refrain from those discussions when using a portable telephone. However, the time has not yet come when a lawyer's mere use of a cellular phone to communicate with the client--without resort to a scrambling device or exculpatory language at the call's beginning--constitutes an ethical breach. --State Bar of Ariz. Comm. On Rules of Professional Conduct Opinion 95-11 (1995).

The New York City Bar Association opinion states as follows:

Fortunately, technology has begun to respond to the need for privacy in cellular and cordless telephone communications. Scrambling or encryption of signals is one way in which the telecommunications industry has attempted to provide security . . . Lawyers should consider taking measures to ensure, with a reasonable degree of certainty, that communications are no more susceptible to interception that standard land-line telephone calls. At a minimum, given the potential risks involved, lawyers should be circumspect and discreet when using cellular or cordless telephones, or other similar means of communication, to discuss client matters, and should avoid, to the maximum reasonable extent, any revelation of client confidences and secrets. --Ass'n of the Bar of the City of N.Y. Comm. On Professional Ethics Opinion 1994-11 (1994).

Iowa Opinion 90-44 and North Carolina Opinion 215 (1995) state that a lawyer must inform the other party to the conversation that the conversation may not be considered confidential. The question presented to the Iowa State Bar Association was whether lawyers had an obligation to inform the other party to the conversation on a cellular phone that the conversation may not be private. The Committee stated:

1. A lawyer using a cellular, mobile or portable telephone shall inform the other party thereof and that any matter communicated in this manner is not confidential and also may result in the loss of the attorney-client privilege, and 2. If the lawyer is aware that the other party is using such means of communication the same caveat shall be given by the lawyer. --Iowa State Bar Association Opinion 90-44 (1990).

The North Carolina Bar Association stated:

The lawyer must use reasonable care to select a mode of communication that, in light of the exigencies of the existing circumstances, will best maintain any confidential information that might be conveyed in the communication....[I]f the lawyer knows or has reason to believe that the communication is over a telecommunication device that is susceptible to interception, the lawyer must advise the other parties to the communication of the risks of interception and the potential for confidentiality to be lost. --N.C. State Bar Ass'n, Ethics Comm. Opinion 251 (1995).

Massachusetts opinion 94-5 (1994) and New Hampshire opinion 1991-92/6 (1992) state that lawyers must get their client's informed consent before discussing confidential matters with them on cellular telephones. The Massachusetts Opinion states:

*27 In our view, lawyers should not discuss confidential information on a cellular telephone if there is any nontrivial risk that such information could be overheard by a third party, whether that third party be involved in the particular matter or not .... [W]e believe that, at least without client consent, a lawyer ought to resolve doubts in favor of protecting confidentiality. --Mass. Bar Ass'n, Ethics Comm. Opinion No. 1994-5 (1994)

The New Hampshire opinion states:

If a lawyer desires to use mobile communications to communicate with the client or with third parties about a client's representation, the lawyer must first disclose to the client that the mobile communication may not be secure and that the confidentiality of the communication may be invaded. The attorney must consult with the client as to the consequences of such possible breach of confidentiality, including a discussion, where pertinent of the possible waiver of the attorney-client privilege. The Committee believes that these same general rules should apply regardless of whether the user of the mobile communications unit is the attorney, the client or a third party with whom the attorney is conversing .... [W]here the lawyer knows or has reason to know that a client or a third party is conversing through a mobile communications unit, he lawyer should confirm this with the other party to the conversation and, where necessary ... obtain the client's prior "knowing consent ...." --N.H Bar Ass'n Ethics Comm. Opinion 1991-92/6

For further information on this topic, in addition to the articles mentioned above, see "Electronic Communications" at page 55:401 of the ABA/BNA Lawyers' Manual on Professional Conduct, "Wireless Phones Raise Concerns of Privacy, Ethics", Volume 8, No. 3 of the BNA CRIMINAL PRACTICE MANUAL (1994); "The Ethics and Malpractice Implications of Lawyers Using Cordless or Cellular Telephones" This article appeared in the ALAS Loss Prevention Journal in January of 1993.

Inquiry #2: A legal aid agency funded by the Legal Services Corporation (LSC) maintains the only legal aid services office in a rural area. The agency has a staff of lawyers who handle cases for indigent clients. The agency is also affiliated with a panel of local lawyers who provide free legal representation to clients referred to them by the agency. When clients call the agency, a

legal aid intake staff person elicits basic facts from them, and then decides whether to refer the matter to one of the staff lawyers, or to one of the pro bono panel lawyers. Occasionally, the agency will receive a call from a party seeking representation, whose interests are directly adverse to one of the agency's existing clients. Once the legal aid intake staff person determines that there is a conflict, may he or she refer the matter to one of the pro bono lawyers? What safeguards must the legal aid agency have in place to protect client confidences?

Response: Legal services organizations have been considered to be analogous to law firms from the standpoint of applicable ethics rules. See ABA Formal Opinion 324, (August 9, 1970), Informal Opinion 1309, (January 13, 1975) and Borden v. Borden, 277 A.2d 89 (1971).

Some state and local ethics committees that have considered factual situations similar to the above inquiry have concluded that it is improper for a legal services organization to obtain confidential information from an adverse party and then refer them to a panel of private lawyers. See, e.g. Philadelphia Ethics Opinion 80-41 and Virginia State Bar Opinion 808 (6/25/86).

Other more recent state bar association opinions have considered whether legal services organizations can set up intake procedures that can screen a potential client with interests adverse to a current legal services client and then refer the client to an affiliated pro bono panel. These opinions state that legal services intake staff can refer clients with interests adverse to

legal services clients to an affiliated pro bono panel if there was no client-lawyer relationship established at the intake stage, the legal services organization and affiliated pro bono panels are not considered to be one firm under Rule 1.10 and safeguards are in place to ensure that the legal services staff lawyers do not have access to information gathered at the intake stage. See, e.g. South Carolina Opinion 96-15 (1996), Arizona State Bar opinion 91-24, Tennessee Opinion 93-F-130 (1993), West Virginia Bar opinion 93-1 (1993) and Alabama opinion 91-36 (1991).

Copyright, 1997 by the American Bar Association; Peter H. Geraghty

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