Ethics Opinion 90: Preservation of Client Confidences in View of Modern Communications Technology, 11/14/92

Introduction

In recent years, there have been significant advances in communications technology. In addition, the cost of many modern communications devices has been decreasing such that the use of cordless telephones, cellular telephones and facsimile machines has become commonplace. It can be expected that new or improved methods of communications devices will continue to be developed.⁽¹⁾ The use of these communications devices carries the increased risk of intentional or inadvertent eavesdropping onto what are intended to be confidential discussions. Therefore, lawyers must be mindful of their duty under Rule 1.6 of the Colorado Rules of Professional Conduct and Canon 4 of the Code of Professional Responsibility to preserve client confidences when utilizing advanced communications technology.

Summary of Opinion

A lawyer must exercise reasonable care when selecting and using communications devices in order to protect the client's confidences or secrets from unintended disclosure.

Analysis

One of the most basic and time-honored precepts of the practice of law is that communications between a lawyer and a client are confidential. Lawyers also frequently engage in discussions which may not fall within a technical privilege, but which at least are sensitive enough that the lawyer would not want the conversation to be overheard. It necessarily follows that a lawyer has a duty to exercise reasonable care to protect the confidentiality of such communications.

A lawyer's duty to preserve confidences and secrets has been codified in, inter alia, Rule 1.6 of the Colorado Rules of Professional Conduct, the comment to which states that "a fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation," as well as in Canon 4 of the Code of Professional Responsibility, which requires that "a lawyer should preserve the confidences and secrets of a client." The lawyer also owes a duty of reasonable care to prevent the lawyer's employees, associates and others whose services are used by the lawyer from disclosing confidential communications [Colorado Rules of Professional Conduct 1.6(d) and Code of Professional Responsibility DR 4-101(D)].

Ever-increasing varieties of communications products are available for a lawyer's use, such as cordless telephones, cellular telephones, facsimile machines, voice messaging and computer modems. Communications by means of these devices are more easily subject to interception than more traditional forms of communications. It is reasonably expected that in the future, there will continue to be technological advances which will facilitate both the communication of information and the interception of such communications.

For instance, cordless telephones are now in widespread use. However, communications by means of cordless telephones can be intercepted by nothing more than an AM radio.

A cordless telephone consists of a handset and a base unit wired to a landline and a household/business electrical current. A communication is transmitted from the handset to the base unit by AM or FM radio signals. From the base unit the communication is transmitted over wire, the same as a regular telephone call. The radio portions of these telephone calls can be intercepted with relative ease using standard AM radios.⁽²⁾

Because it is relatively easy to eavesdrop on a cordless telephone communication, the Federal Communications Commission adopted a rule in March 1984 requiring all sellers of cordless telephones to disclose to their customers that their communications using such telephones were not necessarily confidential. 47 C.F.R. 15.214 (1991 ed.) requires all manufacturers or sellers of cordless telephones to place a label on the cordless base station warning customers that, among other things, "privacy of communications may not be insured while using this phone. . . ." Also, of course, whether or not the communication is purposefully intercepted, there is nevertheless a risk that a third person might unintentionally overhear a conversation that takes place via a cordless telephone.

Cellular telephones have also become popular. Although it is more difficult to intercept cellular telephone communications than cordless telephone communications, one can intercept cellular telephone communications using "scanners" that are available at electronics stores.

In a cellular radiotelephone system, large service areas are divided into honeycomb-shaped segments or "cells" - each of which is equipped with a low-power transmitter or base station which can receive and radiate messages within its parameters. When a caller dials a number on a cellular telephone, a transceiver sends signals over the air on a radio frequency to a cell site. From there the signal travels over phone lines or a microwave to a computerized mobile telephone switching office ("MTSO") or station. The MTSO automatically and inaudibly switches the conversation from one base station and one frequency to another as the portable telephone, typically in a motor vehicle, moves from cell to cell.

Cellular technology, because it is more complex, is more difficult to intercept than traditional mobile telephones; it is, however, more accessible than microwave transmissions. Cellular telephone calls can be intercepted by either sophisticated scanners designed for that purpose, or by regular radio scanners modified to intercept cellular calls.⁽³⁾

At least two federal cases have held that persons using mobile and cordless telephones did not have reasonable expectations of privacy for their communications.⁽⁴⁾ A number of state court opinions, while reaching conflicting results, have also recognized that cordless telephone and certain mobile telephone communications are susceptible, in varying degrees of difficulty, to interception by unauthorized third parties.⁽⁵⁾

The Federal Wire Tapping Statute, found at Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. 2510, et seq. (1968), prohibits the willful interception of "wire" or "oral" communications. Several federal court decisions have held that transmissions by radio waves were not subject to the Act, and that, especially with respect to cordless telephones, there was no reasonable expectation of privacy on the part of anyone talking on a cordless telephone.⁽⁶⁾ Other courts reached the conclusion that radio communications were still wire communications under the Act.⁽⁷⁾

In an effort to resolve the conflict, Congress enacted the Electronic Communications Privacy Act of 1986, which essentially included cellular telephone transmissions within the protection of the statute, but excluded cordless telephone transmissions.⁽⁸⁾ It should also be noted that similar changes have been made to the Colorado eavesdropping statute at C.R.S. 18-9-301, et seq. (1990 amendments).

Consequently, it may not be unlawful for third persons, such as the police, to eavesdrop on a lawyer's confidential communications via a cordless telephone. Also, even though it is unlawful to eavesdrop on cellular telephone calls without a search warrant, it may not be difficult to do so. Furthermore, the risk exists of unintentional interception of confidential communications via these devices.

A lawyer should alert other parties to a communication which is intended to be confidential to the susceptibility of unintended disclosure of confidential information if the lawyer knows or has reason to believe that the lawyer or the other parties are using electronic telecommunications devices that may not be secure.⁽⁹⁾ Lawyers have always had a duty to select a mode of communication that maintains the confidential nature of the information being conveyed. Just as an attorney would not use a megaphone to communicate confidential information across a crowded intersection, so must the attorney use reasonable care in selecting a mode of telecommunications which does not compromise a client's confidences.

Lawyers using facsimile, computer modem or other electronic communications devices should also be aware of the risk that unauthorized persons may discover confidential communications transmitted over those devices unless reasonable care is employed in their use. The mere inclusion of a "confidentiality notice" typically added to facsimile transmission memos is not a substitute for reasonable care in ascertaining the correct facsimile number of the intended recipient and carefully inputting that number into the transmitting equipment to guard against unintended disclosure. Lawyers who share facsimile machines or who send facsimile transmissions to clients who share facsimile machines should also take steps to guard against unintended disclosures.⁽¹⁰⁾

Furthermore, before leaving messages containing confidential information on telephone answering machines, lawyers must exercise reasonable care in determining that the message has been left on the correct machine and that only the intended recipient of that message has access to it. The same is true with respect to communications via computer modem or electronic mail.

In the context of the lawyer's duty to preserve client confidences, careful consideration must be given to the methods utilized by lawyers, their associates and staff members for the communication of confidential information. The use of some of the new communications devices may not provide a reasonable expectation of confidentiality. The lawyer has a duty to select communication methods that are not likely to result in the unintentional disclosure of protected information. Moreover, when the lawyer knows or has reason to know that the client (or anyone else conveying confidential information) has initiated a communication via a medium subject to relatively easy interception, the lawyer's duty under Rule 1.6 and Canon 4 requires warning the other party about the risk of unintended disclosure.

Conclusion

It is impossible to predict how technological advances will alter the means by which communications can be conveyed or intercepted. However, regardless of technological developments, the attorney must exercise reasonable care to guard against the risk that the medium of the communication may somehow compromise the confidential nature of the information being communicated.

1. This opinion is not intended to be a technical guide, and lawyers are encouraged to conduct their own research into the security of their communications devices before using them in the course of confidential communications.

2. H.Rep No. 647, S.Rep. No. 541, 99th Cong. 2d Sess. 9, reprinted in 1986 U.S. Code Cong. & Adm. News 3555, 3563 ("Legislative History Relating to Electronic Communications Privacy Act of 1986").

3. Legislative History, supra, note 2.

4. Tyler v. Berodt, 877 F.2d 705 (8th Cir. 1989), cert. denied, 110 S.Ct. 723 (1990) (cordless telephone conversation overheard by neighbor located four blocks away); Edwards v. Bardwell, 632 F.Supp. 584 (M.D. La.), aff'd, 808 F.2d 54 (5th Cir. 1986) (stranger monitored and taped lawyer-client mobile telephone discussion about criminal activity).

5. Compare People v. Wilson, 196 Ill.App.3d 997, 554 N.E.2d 545, 551 (1990) (radio scanner used to overhear mobile telephone conversation not an "eavesdropping device" inasmuch as such "radio scanners . . . are readily available to the general public, [and] are capable of picking up the FM radio signal which mobile telephones use to transmit their signals."); State v. Howard, 235 Kan. 236, 679 P.2d 197, 204-206 (1984) (no reasonable expectation of privacy for cordless telephone discussion); Dorsey v. State, 402 So.2d 1178, 1183-1184 (Fla. 1981) (no reasonable expectation of privacy in communications via telephone pager) with People v. Fata, 159 A.D.2d 180, 559 N.Y.S.2d 348, 350-351 (N.Y. 1990) (eavesdropping statute applies to cordless telephone communications).

6. E.g., United States v. Hoffa, 436 F.2d 1243 (7th Cir. 1970), cert. denied, 400 U.S. 1000 (1971).

7. E.g., United States v. Clegg, 509 F.2d 605 (5th Cir. 1976).

8. 18 U.S.C. 2510, et seq.

9. The Illinois State Bar Association issued an Advisory Opinion on Professional Conduct on November 26, 1990, advising lawyers that they should inform their clients when using mobile telecommunications devices that they are using such a form of communication, that use of this mode of communication can result in loss of the attorney-client privilege as to such conversations and that they should refrain from discussing confidential matters when using mobile communications. Opinion No. 90-7.

10. See CBA Ethics Opinion 89 (adopted 9/21/91).