Partly Cloudy with a Chance of Sanctions

The legal industry always seems to be late in keeping up with ever-evolving business technology. The lag has little to do with the business of law, and everything to do with the restrictive ethics rules that govern all aspects of the practice. A watershed moment came on March 10, 1999, however, when the American Bar Association (ABA) issued Formal Opinion 99-413. The opinion broke through the fog of confusion on these issues with one simple pronouncement:

The Committee believes that e-mail communications, including those sent unencrypted over the [I]nternet, pose no greater risk of interception or disclosure than other modes of communication commonly relied upon as having a reasonable expectation of privacy. The level of legal protection accorded e-mail transmissions, like that accorded other modes of electronic communication, also supports the reasonableness of an expectation of privacy for unencrypted e-mail transmissions. The risk of unauthorized interception and disclosure exists in every medium of communication, including e-mail. It is not, however, reasonable to require that a mode of communicating information must be avoided simply because interception is technologically possible, especially when unauthorized interception or dissemination of the information is a violation of law. (emphasis added).

The ABA's pronouncement may seem quaint and dated, but the subtle shifting of the burden from the requirement to prove a reasonable expectation of privacy to holding that it is not reasonable to prohibit an entire method of communication because of possible interception risks was a tectonic shift. Following the ABA decision, an explosion in legal technology ensued which has continued unabated from the late 1990s until today. Like those of us practicing in the '90s, today's practitioners are grappling with the ethical uses of yet another technological advance which is being adopted across the business world: The Cloud.