Bar associations have recognized that e-mail communications must conform with the attorney’s duty of confidentiality. Several bar ethics committees have concluded that the expectation of privacy for electronic mail is no less reasonable than the expectation of privacy for ordinary telephone calls. However, the new wireless “smartphone” devices, such as the BlackBerry or iPhone, have raised concerns about the exposure of unauthorized interception of an electronic message. Because the unauthorized interception is illegal under federal law, such interception cannot constitute a waiver, but it can open the door for a malpractice liability. Certain opinions believe that e-mail is susceptible to interception, misdirection and attorney error that could give rise to malpractice liability. It is recommended that the attorney take the following measures:

• Advise the client about risks associated with use of e-mail and obtain the client’s consent
• Do not use the internet for communications involving extraordinarily sensitive matters that would be damaging to the client if disclosed to any outside party
• State on e-mail messages that they are privileged communications
• Consider using encryption when working with clients who are comfortable with it

In September 2008, the Virginia Bar Association released Legal Ethics Opinion No. 1842, which describes the obligations of lawyers who receive confidential information through voice mail left by prospective clients. The bar association analyzed the issue of whether an attorney who was representing one defendant in a multi-defendant criminal matter was disqualified because he received an unsolicited voice mail from a co-defendant who, in good faith, was seeking representation in the same matter and which disclosed confidential information. The attorney had a yellow page ad, but had not otherwise solicited prospective clients to leave confidential information on his voice mail. The bar association concluded that the attorney “was under no ethical obligation to maintain its confidentiality and further, may use the information in representing an adverse party.” [See “Communication and the Internet: Facebook, E-mail and Beyond” by David Hricik, Professor of Law, Mercer University School of Law, Macon, Georgia, December 2009]

The issue resolved in City of Ontario v. Quon, a U.S. Supreme Court case decided in June 2010 [130 S. Ct. 2619], concerned the extent to which the right of privacy applies to electronic communications and turned on whether the Fourth Amendment rights of a police officer were violated when his employer, the police department, reviewed text messages on his pager for legitimate business reasons. The Court held that the review of the transcript was reasonable as all text messages sent by the officer while off-duty were redacted and thus it was legitimately related to the officer’s work performance. This case has potentially enormous significance for privilege in electronic communications.

Posting a “private” instant message on a social networking page may in fact not be a private matter at all. Such content posted on social networking sites is frequently presented as evidence in court. This kind of online forum provides for a more relaxed method of communication coupled with a sense of perceived anonymity that comes with communicating from behind a keyboard as compared to face-to-face communication, and a startling degree of candor is often displayed. It is undoubtedly why litigators are turning to social networking content in search of incriminating statements. The American Academy of Matrimonial Lawyers has reported that 81 percent of its members have used or faced evidence in divorce cases found on Facebook, MySpace, Twitter and other social networking sites. There also have been an increasing number of cases where an employee’s activity on a social networking site has led to the employee’s termination. According to a study conducted by Proofpoint, an Internet security firm, of those companies surveyed with 1,000 or more employees, 8% reported having terminated an employee for comments posted on a social networking site. What are the legal limits as to what a lawyer can access from a person’s social networking profile during litigation? Does a person have a reasonable expectation of privacy as it relates to the content of

what he or she chooses to post on a social networking page? Does it make a difference whether the user chooses a “public” or “private” setting? The answers to these questions remain largely unanswered. The law is struggling to keep up with the pace s t by rapidly changing technology. [See “Redefining Privacy in the Era of Social-Networking” by Petersen, Esq., The Advocate, September 2010, pages 27-28, http://isb.idaho.gov/pdf/advocate/issues/adv10sep.pdf].