By: Jon Cattey, Associate Attorney
With the increased use of the internet and email in the legal world, attorneys are able to communicate faster and more efficiently than ever before. This is extremely helpful when working in a high-volume legal practice and allows attorneys to serve their clients more effectively. However, this increased ease of communication also comes with a heavy burden, and it is important that lawyers understand the ethical considerations pertaining to client representation when using internet communication.
In Wisconsin, a lawyer’s ethical obligation pertaining to client confidentiality stems from Wisconsin Supreme Court Rule 20:1.6. (The corresponding section of the Model Rules of Professional Conduct is Rule 1.6) That rule reads, "A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation . . ." Importantly, the rule does not provide any sort of exception for mistake, inadvertence or error. Consequently, a relatively innocuous email meant for a client in reference to a potential settlement could be a clear violation of their duty to maintain client confidentiality, if it was delivered to the wrong recipient. The email could wind up in the hands of an opposing attorney or an unrelated third-party. In either scenario, the lawyer has violated the above Wisconsin Supreme Court Rule. It is much more difficult to envision such a violation if an attorney is forced to review and physically sign a letter or make a phone call. While this is a simple example, many attorneys are sending tens or evens hundreds of emails every day, and with each of them, there is an increased chance the attorney mistakenly breaches the duty of client confidentiality. Therefore, attorneys must be vigilant when drafting and sending emails, because one mistake could have dire consequences.
Even if an attorney ensures that each email is addressed to the correct party and does not, on its face, disclose confidential information, other potential breaches of client confidentiality exist. One of the most significant of these involves email attachments. Sending an attached document in Microsoft Word or WordPerfect format to an opposing party could subject an attorney to a breach of client confidentiality or in severe cases, malpractice.
There are two main reasons why neither of the aforementioned formats should not be used when sending email attachments to an opposing party. First, both formats allow the email’s recipient to save the document and make changes directly to it. To illustrate the potential consequences of this, envision an attorney sending a draft of a stipulation in Microsoft Word to opposing counsel via email. If opposing counsel would like to give her client an additional thirty days to make a payment, she could simply edit the document to read "February" instead of "January," for example. At that point, she could upload the newly created stipulation and return it to the sender via email. If the attorney who initially sent the email is not diligent and does not closely examine the stipulation, she could unknowingly sign and consequently agree to the thirty day extension. To avoid these sorts of problems, attorneys should send documents in PDF format, which prevents the recipient from editing them. By doing this, attorneys can be certain that the document they are receiving back does not have any minor edits or revisions to it.
The second reason attorneys should refrain from sending documents to opposing parties in Microsoft Word or WordPerfect is because those formats allow third-parties to see the "creation data" of the file. Often times, this information is referred to "metadata." Metadata allows a document’s creator to locate the file in the future based on the hidden information attached to the file or see previous versions of the file. Some common examples of metadata found in Microsoft Word documents are (1) the user and computer name where the document was created, (2) the network where the document was saved, and (3) comments and tracked changes within the document. Disclosure of any of this information could have dire consequences to an attorney. To view the comments and tracked changes in a Microsoft Word document, a user needs only to go to the "Review" tab on the toolbar and click on "Track Changes." By doing this, prior revisions and edits made to the document are shown. Undoubtedly, this feature could provide opposing counsel with valuable information.
For example, an attorney may have been willing to offer $500.00 to settle an account by stipulation and originally used that amount in the document. However, after further consideration, she decides to begin negotiating at $1,000.00 and changes the amount in the stipulation. When opposing counsel downloads the stipulation, she can use the "track changes" feature to see that the original amount entered was $500.00. This information could be important in her decision-making process and may ultimately hinder the sender’s ability to settle the case. Certainly, the fact that opposing counsel now knows that the client and attorney were contemplating a $500.00 settlement is a breach of confidentiality. Information that was meant to be shared only between the attorney and her client has now been passed to a third-party. As noted earlier, the Wisconsin Supreme Court Rule pertaining to client confidentiality does not provide an exception for breaches due to mistake or inadvertence.
Fortunately, by sending email attachments in PDF, attorneys can avoid disclosing confidential information to opposing parties. If it is absolutely necessary to send a document via email in Microsoft Word or WordPerfect, attorneys must protect the document. This feature is located in the "Review" tab of Microsoft Word and allows a document’s creator to send a document in "read only" format and prevent unauthorized users from viewing the tracked changes.
As the legal world evolves into a more technologically-friendly place, attorneys need to appreciate the confidentiality concerns that accompany such an evolution. The recipient of every outgoing email should be verified before clicking "send." Also, document attachments must be sent as PDFs, except on very rare occasions. These tips should help attorneys prevent unnecessary malpractice claims or Office of Lawyer Regulation complaints.