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NEW YORK STATE BAR ASSOCIATION
Committee on Professional Ethics
Opinion #749 –
12/14/2001
Topic: Use of computer software
to surreptitiously examine and trace e-mail and other electronic
documents
Digest: Lawyers may not ethically use
available technology to surreptitiously examine and trace e-mail and
other electronic documents.
Code: DR 1-102(A)(4), DR
1-102(A)(5), DR 4-101, DR 7-102(A)(8), Canon 4, Canon 7, EC 4-1
BACKGROUND
Modern computer technology enables sophisticated users who receive
documents by electronic transmission to “get behind” what is
visible on the computer screen and determine, among other things,
revisions made at various stages, and sometimes even the authors of the
revisions. Use of this technology would enable a lawyer who
receives e-mail and electronic documents from counsel for an opposing
party to obtain various kinds of information that the sender has not
intentionally made available to the lawyer. For example, a lawyer
who has received the final draft of a contract from counsel for a party
with whom the lawyer is negotiating would be able to see prior drafts of
the contract and, perhaps, learn the identity of those who made the
revisions, without the knowledge or consent of the sending lawyer.
How to effectively “block” recipients from access to
deletions and prior versions of the “visible” document
appears to be unclear and a matter of debate among sophisticated
computer users. See, e.g., M. David
Stone, “Deleting Your Deletions,” P.C. Magazine November 20,
2000.
It is also possible for an e-mail sender to determine the subsequent
route of the e-mail, including comments on the e-mail written by its
ultimate recipients. Through use of this application a lawyer can
place a “bug” in e-mail he or she sends to opposing
counsel and learn the identity of those with whom the first recipient
shares the message and comments that these persons may make about
it. Even if a user can avoid applications that make it possible to
place a bug in the user’s e-mail, the recipient’s forwarded
messages can still be traced if the user forwards the message to someone
who has not taken these measures. Accordingly, it is virtually
impossible to render one’s e-mail system
“bug-proof”. See www.privacyfoundation.org/privacywatch,
“E-Mail Wiretapping”, posted February 5,
2001.
QUESTION
May a lawyer ethically may use available technology to
surreptitiously examine and trace e-mail and other electronic documents
in the manner described?
OPINION
This new technology permits a user to access confidential
communications relating to another lawyer’s representation of a
client, including “confidences” and “secrets”
within the scope of DR 4-101 of the Lawyer’s Code of Professional
Responsibility (“Code”)[1] For this reason, we conclude
that the use of computer technology in the manner described above
constitutes an impermissible intrusion on the attorney-client
relationship in violation of the Code. The protection of the confidences
and secrets of a client are among the most significant obligations
imposed on a lawyer. As explained in EC 4-1:
Both the fiduciary relationship existing between lawyer and client
and the proper function of the legal system require the preservation by
the lawyer of confidences and secrets of one who has employed or sought
to employ the lawyer. A client must feel free to discuss anything with
his or her lawyer and a lawyer must be equally free to obtain
information beyond that volunteered by the client. . . .The observance
of the ethical obligation of a lawyer to hold inviolate the confidences
and secrets of a client not only facilitates the full development of
facts essential to proper representation of the client but also
encourages non-lawyers to seek early legal assistance.
Although the precise question presented in this inquiry has not
previously been answered by this Committee or, to our knowledge, by
other ethics authorities, we believe the circumstances described are
substantively analogous to less technologically sophisticated means of
invading the attorney-client relationship that we and other authorities
have addressed and rejected as inconsistent with the ethical norms of
the profession. For example, the strong public policy in favor of
protecting attorney-client confidentiality is expressed in the
prohibition against lawyers (1) soliciting the disclosure of
unauthorized communications, see,
e.g., Dubois v. Gradco Sys., Inc., 136 F.R.D. 341, 347
(D. Conn. 1991) (Cabranes, J.) (Although former employees of adverse
corporate party are not within reach of the no-contact rule “it
goes without saying that plaintiff’s counsel must take care not to
seek to induce or listen to disclosures by the former employees of any
privileged attorney-client communications to which the employee was
privy”); see also ABA Formal Op. 91-359; (2) exploiting the
willingness of others to undermine the confidentiality principle,
see N.Y. State 700 (1997); ABA Formal Op. 94-382; and (3) making
use of inadvertent disclosures of confidential communications,
see ABA Formal Op. 92-368.
The Code prohibits a lawyer from engaging in conduct “involving
dishonesty, fraud, deceit or misrepresentation,” DR 1-102(A)(4)
and “conduct that is prejudicial to the administration of
justice.” DR 1-102(A)(5). We believe that in light of the strong
public policy in favor of preserving confidentiality as the foundation
of the lawyer-client relationship, use of technology to surreptitiously
obtain information that may be protected by the attorney-client
privilege, the work product doctrine or that may otherwise constitute a
“secret” of another lawyer’s client would violate the
letter and spirit of these Disciplinary Rules. Accord MMR/Wallace Power &
Indus. Inc. v. Thames Assocs., 764 F. Supp. 712, 718-19 (D. Conn.
1991) (spirit if not the letter of ethical rules precludes an attorney
from acquiring, inadvertently or otherwise, confidential information
about his adversary’s litigation strategy); In re Wisehart,
721 N.Y.S. 2d 356, 281 A.D. 2d 23, (1st
Dep’t 2001) (respondent suspended for two years for using
documents purloined by his client from opposing counsel); N.Y. City
1989-1 (client’s interception of adversary’s communications
with counsel involved dishonesty and deceit; lawyer may not help client
take advantage of such wrongdoing).
In the present inquiry, although counsel for the other party intends
the lawyer to receive the “visible” document, absent an
explicit direction to the contrary counsel plainly does not intend the
lawyer to receive the “hidden” material or information about
the authors of revisions to the document. To some extent,
therefore, the “inadvertent” and “unauthorized”
disclosure cases provide guidance in the present inquiry.
In N.Y. State 700 (1997), we concluded that a lawyer who receives an
unsolicited and unauthorized communication from a former employee of an
adversary’s law firm may not seek information from that person if
the communication would exploit the adversary’s confidences or
secrets. Despite the fact that the Code does not expressly require
a lawyer to refrain from encouraging a breach of client confidentiality
by opposing counsel’s staff, we determined that because use of
such information would undermine confidentiality and the attorney-client
relationship, it was conduct “involving dishonesty, fraud, deceit
or misrepresentation,” DR 1-102(A)(4), and “conduct
prejudicial to the administration of justice.” DR
1-102(A)(5).
In N.Y. State 700 we cited ABA Formal Op. 92-368 in support of our
conclusion that the strong public policy in favor of confidentiality
outweighed what might be seen as the competing principles of zealous
representation (Canon 7) and encouraging more careful conduct. ABA
92-368 concluded that a lawyer who receives confidential materials under
circumstances where it is clear that they were not intended for the
receiving lawyer (a) should not examine the materials once the
inadvertence is discovered, (b) should notify the sending lawyer of
their receipt, and (c) should abide by the sending lawyer’s
instructions as to their disposition.
The circumstances of the present inquiry present an even more
compelling case against surreptitious acquisition and use of
confidential or privileged information than that presented by the
“inadvertent” or “unauthorized” disclosure
decisions. First, to the extent that the other lawyer has
“disclosed”, it is an unknowing and unwilling, rather than
inadvertent or careless, disclosure. In the
“inadvertent” and “unauthorized” disclosure
decisions, the public policy interest in encouraging more careful
conduct had to be balanced against the public policy in favor of
confidentiality. No such balance need be struck here because it is
a deliberate act by the receiving lawyer, not carelessness on the part
of the sending lawyer, that would lead to the disclosure of client
confidences and secrets.
Nor need we balance the protection of confidentiality against
the principles of zealous representation expressed in Canon
7. Our Code carefully circumscribes factual and legal
representations a lawyer can make, people a lawyer may contact, and
actions a lawyer can take on behalf of a client. Prohibiting the
intentional use of computer technology to surreptitiously obtain
privileged or otherwise confidential information is entirely consistent
with these ethical restraints on uncontrolled
advocacy.
Although our jurisdiction does not extend to questions of law, we
note that the misuse of some aspects of this technology, particularly
the use of e-mail “bugs,” may violate federal or state law
prohibiting unauthorized interception of e-mail content. See, e.g., The Electronic Communications Privacy
Act, 18 U.S.C. §§2510 et. seq. In that
event, such conduct would, of course, be unethical per se. DR 7-102(A)(8) (“In
the representation of a client, a lawyer shall not . . .[k]nowingly
engage in other illegal conduct or conduct contrary to a Disciplinary
Rule”).
Finally, the inquiry that has prompted this opinion underscores the
need for all lawyers to exercise care in using Internet based
e-mail. Accordingly, we reiterate the admonition we offered in
N.Y. State 709 (1998) that “lawyers must always act reasonably in
choosing e-mail for confidential communications, as with any other means
of communication.” [2]
CONCLUSION
A lawyer may not make use of computer software applications to
surreptitiously “get behind” visible documents or to trace
e-mail.
(25-01)
[1] The Code
defines “confidence” as “information protected by the
attorney-client privilege under applicable law”; the term
“secret” includes all “other information gained in the
professional relationship that the client has requested be held
inviolate or the disclosure of which would be embarrassing or would be
likely to be detrimental to the client.” DR 4-101(A).
[2] As noted in N.Y. State
709 (1998), “ in circumstances in which a lawyer is on notice for
a specific reason that a particular e-mail transmission is at heightened
risk of interception, or where the confidential information at issue is
of such an extraordinarily sensitive nature that it is reasonable to use
only a means of communication that is completely within the
lawyer’s control, the lawyer must select a more secure means of
communication than unencrypted Internet e-mail.”
Related Files
Opinion 749 (Adobe PDF File)
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