A number of states have ethics opinions concerning the use of e-mail by attorneys as it applies to confidentiality. Some require client consent for transmission of confidential information via e-mail; some state that encryption of confidential e-mail is unnecessary. Please check with your state directly if you have any concerns about confidentiality and the use of e-mail. Below are examples of ethics opinions concerning e-mail and confidentiality.

See also International.

• Model Rule 1.6 (courtesy of Cornell's Legal Information Institute)
  Rule 1.6: Confidentiality of Information
• Model Rule 5.3 (courtesy of Cornell's Legal Information Institute)
  Rule 5.3: Responsibilities Regarding Nonlawyer Assistants

• ABA Formal Opinion 99-413: Protecting the Confidentiality of Unencrypted E-Mail
• ABA Formal Opinion 95-398 (see question 2): Concerning Model Rule 5.3 and computer support personnel

• Alaska (Alaska Bar Association: 98-2, 1/16/98): This opinion allows attorneys to ethically communicate with clients using electronic mail, but attorneys should use "discretion and good judgement" and advise clients that "the confidentiality of unencrypted e-mail is not assured." The use of encryption software is encouraged.
• Colorado (Colorado Bar Association: 90, 11/14/92): This opinion asks attorneys to use reasonable care in selection and use of electronic modes of communications when discussion confidential issues. The "mere" inclusion of a confidentiality notice may not exhibit sufficient care in ensuring confidentiality.
• District of Columbia (The District of Columbia Bar: 281, 2/18/98 (pdf)): This opinion states that, generally, transmission of confidential information by unencrypted e-mail does not violate its confidentiality. Attorneys should evaluate individual situations to determine the level of security required.
• Iowa
  • (Iowa Supreme Court Board of Professional Ethics and Conduct/Iowa State Bar Association: 97-01, 9/18/97): This opinion amends opinion 96-01. For the transmission of confidential information by e-mail or other networks, the attorney must have written consent from the client.
  • (Iowa Supreme Court Board of Professional Ethics and Conduct/Iowa State Bar Association: 96-33, 6/5/97): This opinion gives general guidelines for the determination of "sensitive material" and asks that determination be made on a case-by-case basis.
  • (Iowa Supreme Court Board of Professional Ethics and Conduct/Iowa State Bar Association: 96-01, 8/29/96): This opinion (Division III.) describes requirements for encryption and consent in order to transmit confidential information by e-mail. It was amended by opinion 97-01 above.
  • (Iowa Supreme Court Board of Professional Ethics and Conduct/Iowa State Bar Association: 95-30, 5/16/96): This opinion (Division III) requires that all confidential information transmitted by e-mail be encrypted. It was amended by opinions 96-01 and 97-01 above.
• Kentucky (Kentucky Bar Association/University of Kentucky Law School: E-403, July 1998): This opinion does not require attorneys to use encryption when communicating with clients, but does add the caveat: "unless unusual circumstances require enhanced security measures."
• Massachusetts (Massachusetts Bar Association: 00-01, 1/2000): This opinion states that confidential information may be exchanged in e-mail between attorneys and clients without encyrption as long as care is taken.
• Minnesota (Minnesota Lawyers Professional Responsibility Board: 19, 1/22/99): This opinion allows the exchange of confidential information by unencrypted e-mail.
• Missouri
  • (The Missouri Bar: 990007): This informal advisory opinion states that creation of a general consent form for the use of e-mail to transmit confidential information is extremely difficult. Attorneys are requested to inform clients of all risks associated with using e-mail, not just interception during transmission.
  • (The Missouri Bar: 970010): This informal advisory opinions suggests that attorney Web sites with the option to e-mail the attorney include a statement on the security and confidentiality of e-mail.
  • Other prior associated informal opinions: 980137, 970230, and 970161. These opinions are variations on 990001 above and state that clients must give informed consent to having confidential information transmitted via unencrypted e-mail.
• New York
  • (The Association of the Bar of the City of New York: 1998-2, 12/21/98): Scroll down halfway. This opinion from the Committee on Professional and Judicial Ethics allows attorneys to exchange unencrypted e-mail with clients, but it recommends that attorneys advise their clients that such communications are not as secure as other forms of communication.
  • (New York State Bar Association: 709, 9/16/98): This opinion states that unencrypted e-mail has a reasonable exceptation of privacy, and attorneys may communicate with clients via uncrypted e-mail without breaching confidentiality.
• North Carolina (North Carolina Bar Association: RPC 215, 4/13/95): See especially Inquiry #2. This opinion asks attorneys to advise their clients of the risks inherent in unsecured electronic communications.
• South Carolina (The South Carolina Bar: 97-08, 6/97): This advisory opinion states that confidential information sent via e-mail retains an expectation of privacy. This opinion re-examines Advisory Opinion 94-27.
• Tennessee (Tennessee Bar Association: 98-A-650(a), 11/19/98): This advisory opinion re-examines advisory opinion 98-A-650 (listed above on the Web page). This opinion allows transmission of confidential information via unencrypted e-mail.

Below are links to resources on other technology and ethics-related topics: