Preservation of the Attorney-Client Privilege on the Internet

Attorney meeting clients

This post is part of a series of posts entitled A Legal Guide to the Internet. For a comprehensive list of articles contained in this series, click here

What is the Attorney-Client Privilege

Among other things, the attorney-client privilege prevents an attorney from testifying against his or her client’s interest based upon information provided to the attorney by the client. This privilege only protects private, not public, communications between the attorney and client. It is the obligation of the attorney to not knowingly reveal a confidence or secret of his or her client.

Online Attorney-Client Privilege in MN

How is the attorney-client privilege maintained when e-mail is used for such communications? According to the Minnesota Lawyers Professional Responsibility Board, the attorney does not violate the rule against knowingly revealing a client’s confidences by using e-mail without encryption to transmit and receive confidential client information. Most states have similar standards, though many suggest or require obtaining client permission prior to using e-mail for sensitive information, and others suggest encryption. The American Bar Association Standing Committee on Ethics and Professional Responsibility recently issued a formal opinion that a lawyer may transmit information relating to the representation of a client by unencrypted e-mail sent over the Internet without violating the Model Rules of Professional Conduct. It is still a wise business practice to obtain client consent before using e-mail and to use encryption whenever particularly sensitive information is to be transmitted via the Internet.

This and the following posts have been copied or adopted from A Legal Guide To The INTERNET – Sixth Edition, published through a collaborative effort by the Minnesota Department of Employment & Economic Development and Merchant & Gould.