Document Type
Article
Abstract
Although in many ways technology has made ways technology has made the practice of law easier, the vast increases in storage capacity, the lightning-quick speed of communication, and the ability to transmit data over the Internet have made it more important for lawyers to consider the impact of technology on the core ethical issue of confidentiality. Digitalization of the practice of law means that a breach of a duty of confidentiality can have far greater consequences because greater amounts of information can be transmitted at lightning speeds. Where once it would have taken a truck and an army of burglars to steal an important but voluminous file, today that information can be attached to a single e-mail. The ethical duty remains the same, but the consequences differ and the precise acts needed to protect client confidentially involve the use of new technology and uncertain or even unknown risks.
This Article describes how lawyers can meet their obligation of confidentiality when dealing with e-mail transmission. It updates articles written by David Hricik more than six years ago—eons in the Internet age—that became widely cited in support of the proposition that e-mail was secure for purposes of attorney-client communications. Since those articles were published, a few authors have agreed with his conclusions, while others have not. Indeed, a very recent piece notes that the foundation for the conclusion that e-mail was safe to use has been called into question by a subsequent First Circuit decision. In a rather Quixotic fashion, this Article presents a very careful inquiry into the factual risks and an analysis of the legal protections associated with e-mail, with the hope of ending this debate.
Recommended Citation
David Hricik and Amy Falkingham,
Lawyers Still Worry too Much About Transmitting E-Mail Over the Internet,
10 J. Tech. L. & Pol'y
(2005).
Available at: https://scholarship.law.ufl.edu/jtlp/vol10/iss2/4