Duty to Protect Confidentiality of E-Mail Communication with One's Client

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This is a formal opinion from the ABA (Formal Opinion 11-459) dated August 4, 2011


The introductory comment of this formal American Bar Association opinion states as follows: 

"A lawyer sending or receiving substantive communications with a client via e-mail or other electronic
means ordinarily must warn the client about the risk of sending or receiving electronic communications
using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party."




The opinion goes on to provide other insight regarding ethical obligations associated with an attorney's duty to warn their client, and cites specific cases that pertain to this issue, as well as the ABA Model rules of professional conduct.