How Hushmail helps lawyers communicate
Published on June 8, 2017
Last month, the American Bar Association Standing Committee on Ethics and Professional Responsibility released Formal Opinion 477 addressing a lawyer's confidentiality obligations for email communications about client matters.
The Opinion comes at a time when data breaches and hacks are frequently in the news. A previous opinion, 99-413, issued in 1999, noted that lawyers have a reasonable expectation of privacy in all forms of email, including unencrypted messages sent via the internet. While the basic obligations of confidentiality continue to be applicable, times have changed and the role and risks of technology in the practice of law have evolved. Formal Opinion 477 sets out to update the guidelines in light of today’s fragile online security climate.
The Opinion states that lawyers can transmit client information over the internet without violating their confidentiality obligations, as long as the lawyer has taken "reasonable efforts" to prevent unauthorized access to the information. The determination of what constitutes "reasonable efforts" requires a fact-based analysis of a number of factors, including:
- The sensitivity of the information
- The likelihood of disclosure if additional safeguards are not employed
- The cost of employing additional safeguards
- The difficulty of implementing the safeguards
- The extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).
The Opinion states that for routine communication, not containing sensitive information, unencrypted email generally remains an acceptable method of communication. However, the Opinion goes on to say that strong standards, such as encryption, are warranted in some circumstances, when the fact-based analysis suggests that the risks and implications of an information breach are elevated, and the implementation of safeguards is not unreasonably onerous.
The Opinion recommends a lawyer consult with their client to determine how to appropriately and safely use technology in their communications, as part of determining what are "reasonable efforts".
Hushmail has been providing encrypted email solutions to the legal industry for years. Hushmail for Law includes a signed agreement to support the claim of attorney-client privilege, and we help you create secure forms for your practice’s website, enabling clients and potential clients to initiate contact confidentially.
It’s worth noting that Hushmail addresses the criteria outlined by the ABA in their fact-based analysis: it is designed for the secure transmission of sensitive information, the cost is not prohibitively expensive, it is extremely easy to implement, and, as a result, does not adversely affect a lawyer’s ability to represent clients.
In short, our service makes it simple for lawyers to satisfy their professional obligation for secure and confidential communications. With webmail and an iPhone app, Hushmail enables you to send encrypted email from anywhere, to anyone. So if you are a lawyer looking for solutions to address the online communications security considerations outlined in Formal Opinion 477, Hushmail is worth a look.