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Spam Filters Raise Ethical Issues
Most attorneys rely heavily on e-mail as a primary form of communication with their clients. The accessibility, speed, flexibility and low cost of e-mail have made it a nearly indispensable tool in the business community. However, these same qualities that make e-mail so valuable have enabled unscrupulous marketers to blanket e-mail users with unsolicited e-mails, such as for mortgage refinancing, prescription drugs, obscene invitations and requests for help from fictitious Third World government officials. Spam is the nemesis of nearly every e-mail user, and as spam exceeds the point of accounting for one of every two e-mails transmitted, many feel that without remedial steps, this medium may be in jeopardy.
As a result, Internet service providers (ISPs), corporate network administrators and individual e-mail users have looked to spam-filtering systems for relief. Attorneys and law firms have similarly embraced such technology. Since e-mail is used by attorneys to transmit confidential communications, it is incumbent upon them to consider the possible ethical obligations, and exposure to liability, in connection with any system that may affect the attorney-client privilege, and more broadly affect attorney-client communications.
Attorneys are obligated to take reasonable steps to preserve the confidentiality of attorney-client communications in order to enjoy the protection of the attorney-client privilege. It has long been established, both by courts and in bar association opinions, that e-mail correspondences between an attorney and a client are subject to the attorney-client privilege. The American Bar Association's Formal Opinion No. 99-413 (March 10, 1999) affirmed this position by stating that e-mail usage is an acceptable means of communication for purposes of the attorney-client privilege “because the mode of transmission affords a reasonable expectation of privacy from a technological and legal standpoint.”
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