Coon, Volume VII, Issue 3, Richmond Journal of Law & Technology
 
Volume VII, Issue 3, 
Winter 2001



United States v. Keystone Sanitation Company: 
E-mail and the Attorney-Client Privilege

by: Karen M. Coon(*)
Cite As: Karen M. Coon, Note, United States v. Keystone Sanitation Company: 
E-mail and the Attorney-Client Privilege, 7 RICH. J.L. & TECH. 30 (Winter 2001), 
at http://www.richmond.edu/jolt/v7i3/article4.html.
 
TABLE OF CONTENTS
I. INTRODUCTION
II. THE ATTORNEY-CLIENT PRIVILEGE
III. ELECTRONIC COMMUNICATIONS PRIVACY ACT (ECPA)
IV. ELECTRONIC MAIL
  A. Brief Overview of the Internet and E-mail
  B. Types of E-mail Systems
  C. E-mail Compared and Contrasted with Other Methods of Communication
  D. Benefits of E-mail
V. UNITED STATES V. KEYSTONE SANITATION COMPANY
  A. Background
  B. Evaluation
VI. THE CURRENT STATE OF THE LAW
  A. Case Law and the ECPA
  B. Ethical and Professional Responsibilities
  C. Safeguards
  D. Conclusion


I. INTRODUCTION 
{1}The rapid growth and sophistication of technology have changed the way people 
communicate. E-mail and the Internet have begun to affect the way attorneys 
communicate with their clients. E-mail is fast and convenient, but it is not 
without risks. The risk of illegal interception and the risk of inadvertent 
disclosure are serious issues that attorneys need to be aware of and try to 
prevent so that the attorney-client privilege is protected as much as possible. 
Although communicating with a client by e-mail may be risky, the risks posed by 
e-mail are no different from those posed by communicating by postal mail, 
telephone, or fax machine.
{2}In an attempt to regulate telephonic communications, Congress passed the 
Federal Communications Act of 1934 ("FCA").[1]  With the development of the 
Internet and e-mail, new risks arose, and it became necessary to regulate 
electronic communications. As a response, Congress passed the Electronic 
Communications Privacy Act of 1986 ("ECPA").[2]  Although the district court in 
United States v. Keystone Sanitation Company[3] encountered e-mail and the 
attorney-client privilege, the court failed to explain fully and adequately the 
implications and effects of e-mail on the attorney-client privilege.
{3}This note explores the implications of e-mail for the attorney-client 
privilege. Part II presents the basic elements of the attorney-client privilege 
and explains why the privilege is important. Part III introduces the ECPA, and 
Part IV gives a brief background on the development of the Internet and e-mail, 
explains the different types of e-mail systems, compares and contrasts e-mail 
with other forms of communication, and discusses the benefits of e-mail. In 
addition, Part V presents the history and issues involved in United States v. 
Keystone Sanitation Company. Finally, Part VI examines the current state of the 
law regarding e-mail and the attorney-client privilege, and provides a summary 
and conclusion of the main points of this note.
II. THE ATTORNEY-CLIENT PRIVILEGE
{4}The conversations shared, information exchanged, and advice offered between 
an attorney and his client generally fall under the attorney-client privilege. 
Information considered privileged need not be disclosed to an opposing party 
during the discovery process. According to the Federal Rules of Civil Procedure, 
"[p]arties may obtain discovery regarding any matter not privileged, which is 
relevant to the subject matter involved in the pending action ..."[4]  In 
addition, the American Bar Association's Model Rules of Professional Conduct 
indicate that an attorney may not disclose any information concerning a client's 
case, unless the client has authorized disclosure or disclosure is necessary to 
represent the client.[5] Generally,
    [t]he attorney-client privilege arises (1) [w]here legal advice of any kind 
    is sought (2) from a professional legal adviser in his capacity as such, (3) 
    the communications relating to that purpose, (4) made in confidence (5) by 
    the client, (6) are at his instance permanently protected (7) from 
    disclosure by himself or by the legal adviser, (8) except the protection be 
    waived.[6]
However, because the privilege is in opposition to the notion that all evidence 
should be available so that the investigation for truth is successful, the 
privilege "ought to be strictly confined within the narrowest possible limits 
consistent with the logic of its principle."[7]
{5}The purpose of the attorney-client privilege, which is the oldest 
confidential communications privilege recognized by the common law,[8] is to 
promote open and honest communications between attorneys and clients.[9] In 
order to give clients complete and accurate information and advice, attorneys 
must be fully informed.[10] Knowing that communications are privileged may 
encourage clients to divulge pertinent information that they may be unwilling or 
afraid to share absent the privilege. Since disclosure undermines the 
confidentiality of the communication, the privilege is usually waived if the 
information is disclosed to a third party.[11]
III. ELECTRONIC COMMUNICATIONS PRIVACY ACT (ECPA)
{6}Prior to Congress passing the ECPA[12] in 1986, the FCA prohibited 
unauthorized publication or use of radio or telephone communications.[13] The 
development of the Internet and e-mail made it necessary to pass the ECPA so 
that electronic communications would also be protected. The ECPA prohibits the 
interception and disclosure of wire, oral, or electronic communications.[14] 
Specifically prohibited acts include: "intentionally intercept[ing], 
endeavor[ing] to intercept, or procur[ing] any other person to intercept or 
endeavor to intercept, any wire, oral, or electronic communication."[15] The 
ECPA expressly states that "no otherwise privileged wire, oral, or electronic 
communication intercepted ... shall lose its privileged character."[16]
IV. ELECTRONIC MAIL
A. Brief Overview of the Internet and E-mail
{7}The Internet grew out of a U.S. Department of Defense project. Originally 
called the "ARPANET," the Internet was developed starting in 1969 by the 
Advanced Research Project Agency. It was designed to ease the sharing of 
information between researchers at various universities and in the military. 
Additionally, the Internet was also meant to assure that communication could 
continue during a nuclear attack.[17] The Internet is a vast network connecting 
many different "host" computers, each having their own address for sending and 
receiving e-mail.[18]
{8}E-mail is "a document created or received on an electronic mail system 
including brief notes, more formal or substantive narrative documents, and any 
attachments, such as word processing and other electronic documents, which may 
be transmitted with the message."[19] When e-mail messages are sent, they travel 
through various routes and are broken up into separate segments, called 
"packets," before arriving in the recipient's e-mail mailbox.[20] There are four 
different types of e-mail systems: direct e-mail, private e-mail, on-line 
service provider, and Internet access provider. Each system requires users to 
have a username and a password in order to access their individual e-mail 
accounts and to receive and send messages.
B. Types of E-mail Systems
1. Direct E-mail
{9}Direct e-mail requires that the sender directly dial the receiver's modem. 
The modem puts the e-mail message into digital form before transferring the 
message through phone lines to the receiver's modem. The receiver's modem then 
translates the digital information back into language format so that it is 
readable by the receiver.[21]  The information is in digital form as it travels 
through the phone lines, so intercepting and reading information on direct 
e-mail systems is more difficult than intercepting other types of 
communication.[22]
2. Private E-mail
{10}There are two types of private e-mail systems: internal corporate e-mail 
systems and "extranet" networks. Internal corporate e-mail systems permit only 
internal access. "Extranet" networks involve one private network directly 
dialing another private network.[23] The attorney-client privilege may arise in 
the context of private e-mail systems when an attorney discusses a client's case 
over e-mail with another attorney who is internally connected to the same 
private system, or when a corporation's in-house counsel communicates by e-mail 
with a member of the corporation who is the client.[24] The American Bar 
Association ("ABA") and various state bar associations all indicate that private 
e-mail systems maintain confidentiality since the messages travel directly from 
one computer on a private network to another computer on the same private 
network. Additionally, even if a message on a private network is intercepted or 
inadvertently received by an unintended party, all attorneys and/or employees 
with access to the network are obligated to maintain confidentiality for all of 
the firm's clients.[25]
3. On-line Service Provider
{11}On-line service providers issue passwords to users who then access e-mail 
accounts from which the users can send and receive messages. User mailboxes are 
maintained by the on-line service provider in a public forum, although each 
individual mailbox is protected by password. Thus, even though individuals have 
private mailboxes accessible only by password, messages could inadvertently be 
delivered to the mailbox of another user.[26]
{12}Unlike private in-house e-mail systems, in which all users owe a duty of 
confidentiality, most people who utilize on-line service providers owe no duty 
of confidentiality to other users of the on-line service provider.[27] In 
addition, the policy of the individual on-line service provider affects how 
secure the system is. Depending on its policy, the on-line service provider's 
system administrator may be permitted to access and examine certain e-mail 
messages.[28] Such inspection is regulated and restricted by federal law.[29]
4. Internet Access Provider
{13}E-mail can also be sent over the Internet without utilizing an on-line 
service provider. Instead, Internet access providers are used to get messages to 
their destinations.[30] Each user has a local Internet access provider. The 
local Internet access provider "connects with a larger Internet provider ... 
[and] [t]hat provider may, in turn, connect to an even larger provider."[31] 
Like on-line service providers, Internet access providers may reserve the right 
to inspect e-mail and may also randomly monitor messages.[32]
C. E-mail Compared and Contrasted with Other Methods of Communication
{14}Attorneys have a duty to protect the confidentiality of client information 
and to protect confidential information from being misused or inadvertently 
disclosed. Confidential client information must be "acquired, stored, retrieved, 
and transmitted under systems and controls that are reasonably designed and 
managed to maintain confidentiality."[33] Therefore, in order to protect the 
attorney-client privilege, attorneys are required to use methods of 
communication through which they can "reasonably" expect confidentiality to be 
maintained.[34]
1. U.S. Postal Mail
{15}The U.S. Postal Service is considered "reasonably" secure, and is therefore 
a common and acceptable method of attorney-client communications.[35] In many 
ways, sending e-mail is like sending a letter through the U.S. Postal Service. 
Letters, which are addressed to specific recipients, pass through various hands 
in many different places before arriving at their destination. It is possible 
that someone other than the intended recipient could open the letter and read 
the information. It is also possible that the letter could be inadvertently 
delivered to the wrong person. Similarly, e-mail messages pass through many 
different routes before reaching their destination, and it is possible that 
e-mails may be intercepted or retrieved by someone other than the intended 
recipient.
{16}Despite the similarities between letters sent via the U.S. Postal Service 
and messages sent via e-mail, letters are generally considered more secure than 
e-mail messages since letters are sealed.[36] On the other hand, both the U.S. 
Post Office and many on-line service providers reserve the right to inspect the 
letters or messages sent through their service. Thus, neither postal mail nor 
e-mail guarantee absolute privacy.
{17}In addition, unlike letters that are sent as one complete document, e-mail 
messages are generally transmitted to the recipient in "packets." The "packets" 
are then put together to form the message once they reach their destination.[37] 
Since e-mail messages are not sent as single, complete documents, it is very 
difficult to intercept all the "packets" and put them all together to from the 
actual message.[38] In contrast, letters, which are sent as single documents, 
allow an interceptor access to the complete document.
2. Telephones
{18}The American Bar Association has specifically stated that "a lawyer has a 
reasonable expectation of privacy in the use of a telephone."[39] Using a 
telephone to communicate with a client does not breach the attorney-client 
privilege. Intercepting and reading information on e-mail systems (especially on 
direct e-mail systems) is generally more difficult than intercepting and 
eavesdropping on telephone conversations because, unlike phone conversations, 
the information in e-mail messages is in digital form as it travels through the 
phone lines. Decoding this digital message requires more skill than would be 
required to intercept a phone call.
3. Fax Machines
{19}A fax machine is considered a "reasonably" secure method of 
communication.[40] The process of sending information by e-mail is practically 
indistinguishable from the process of sending a fax.[41] Since e-mail uses the 
same type of digital transmitting system as fax machines use, and since faxes 
are protected by the attorney-client privilege, e-mails should also be protected 
by the attorney-client privilege.[42]
{20}Despite the similarities in the process of sending an e-mail message and 
sending a fax, differences do exist. One difference is that e-mail messages are 
stored during transmission.[43] An e-mail is stored by the private network, the 
on-line service provider, or the Internet access provider. Additionally, once 
the e-mail reaches its destination, it is saved on the recipient's network. 
Deleting the message from the recipient's e-mail mailbox does not necessarily 
mean that the message is completely erased from the network. Since many law 
firms periodically "back-up" the information on their networks, information that 
is deleted from individual mailboxes and from the network may still be found on 
a "back-up" disk.[44] Unlike e-mail messages, faxes are not stored or saved; 
they are printed out as soon as they travel through the phone line to their 
destination.
{21}Another difference between e-mails and faxes is that inadvertently sending 
information to an unintended recipient is generally much easier to do when using 
a fax machine. Sending a fax requires entering a seven-digit number. Just as 
entering one incorrect digit will result in calling someone different on the 
telephone, entering one incorrect digit will result in the fax printing out on 
an unintended recipient's fax machine.[45]
{22}On the other hand, each e-mail user has a specific address. Without the 
exact e-mail address, information cannot be transmitted by e-mail.[46] 
Interchanging letters or numbers that comprise the e-mail address, or entering 
an incorrect letter or number into the address is more likely to result in the 
message being returned to the user because it was undeliverable. Finally, e-mail 
addresses often contain the name of the recipient. This makes it less likely 
that the intended recipient's e-mail address will be accidentally confused with 
a different recipient's e-mail address.[47] In contrast, fax numbers do not 
contain the intended recipient's name and could be easily confused with an 
unintended recipient's fax number.
D. Benefits of E-mail
{23}E-mail has become very popular partly because of the advantages it offers 
over other methods of communication. One advantage is convenience. The sender 
can type an e-mail message and send it at any time, regardless of whether the 
intended recipient is also using e-mail at the same time or is available at that 
time. The message will be sent and stored until the recipient retrieves it. In 
contrast, using the telephone or a fax machine may result in receiving a busy 
signal and being unable to contact the recipient.
{24}Another advantage is that e-mail allows the sender to sit at his desk and 
transmit information to anyone in the world in a short amount of time.[48] 
E-mail also allows the user to correct and edit outgoing documents quickly and 
easily. Faxes, on the other hand, require retyping the entire document in order 
to make corrections. E-mail also provides the benefit of easy access of stored 
material. Storing paper documents takes up more room than storing the same 
documents on a hard drive or a disk. Finally, e-mail is generally more 
inexpensive and cost-effective than other forms of communication. Sending a 
one-page fax can cost as much as sending one page by first class mail. However, 
for the same price a person could send about 100 pages over e-mail.[49]
V. UNITED STATES V. KEYSTONE SANITATION COMPANY
A. Background
1. Keystone I
{25}In Keystone I,[50] the United States filed suit against the Keystone 
Sanitation Company and ten other defendants to recover money spent by the 
Environmental Protection Agency ("EPA") for cleaning up a contaminated landfill 
site pursuant to the Comprehensive Environmental Response Compensation and 
Liability Act ("CERCLA").[51] In particular, the Keystone I court dealt with the 
United States' motion to dismiss the defendants' counterclaims. The court 
ultimately granted the motion to dismiss some of the counterclaims, but denied 
the motion for other counterclaims.[52]
2. Keystone II
{26}In Keystone II,[53] the court examined the claims of the other defendants 
who were also held responsible for clean up costs. The other defendants claimed 
that Keystone distributed and disposed of its assets in order to avoid paying 
its share of the CERCLA liability.[54] To establish that Keystone transferred 
assets in order to avoid CERCLA liability, the other defendants requested 
production of all documents related to the transfer of assets since the time the 
EPA began investigating Keystone. In particular, the other defendants requested 
attorneys' billing statements dealing with the transfer of Keystone assets.[55]
{27}Keystone produced printouts of e-mail messages containing attorneys' billing 
statements and e-mail printouts indicating that Keystone's attorneys were giving 
Keystone legal advice about how to transfer assets out of the corporation.[56] 
Keystone claimed that the documents were protected by the attorney-client 
privilege. The other defendants claimed that since Keystone included printouts 
of the e-mail messages when they produced prior documents, the attorney-client 
privilege was waived.[57] Keystone insisted that the privilege was not waived 
since the disclosure was inadvertent.[58]
{28}The Keystone II court explained that attorney billing statements "are 
protected by the attorney-client privilege only to the extent that they reveal 
litigation strategy and/or the nature of services performed."[59] Since the 
Keystone billing statements contain information about the nature of services 
performed, the court indicated that the documents would be "protected by the 
attorney-client privilege, absent a waiver."[60] Ultimately, the court held that 
Keystone waived the attorney-client privilege by providing the documents at a 
previous time. Keystone, therefore, had to produce all attorney billing 
statements related to the distribution of assets.[61]
{29}The court used the following factors to reach its conclusion that the 
documents lost their privilege through inadvertent disclosure:
    (1) the reasonableness of the precautions taken to prevent inadvertent 
    disclosure in view of the extent of the document production; (2) the number 
    of inadvertent disclosures; (3) the extent of the disclosure; (4) any delay 
    and measure taken to rectify the disclosure; and (5) whether the overriding 
    interests of justice would or would not be served by relieving a party of 
    its error.[62]
The court concluded that the "balance of these factors weighs in favor of 
holding that ... Keystone ...waived any privilege that may have protected their 
attorneys' billing statements from disclosure."[63]
{30}As to the first factor, the court explained that Keystone's precautions were 
not reasonable since Keystone did not assert any privilege before it began 
producing documents.[64] Furthermore, according to the court, the second and 
third factors, which looked at the number and extent of disclosures, also 
support waiver. Although only two documents were actually in question, "the 
extent of the disclosure in these documents is complete."[65] Both documents 
contain the exact type of information that the other defendants were trying to 
get through their request for attorney billing statements. Therefore, despite 
the small number of documents, the extent of disclosure in those documents 
supports waiving the attorney-client privilege.
{31}The fourth factor, delay or measures taken to rectify disclosure, is not 
"significantly implicated" since the parties began arguing about waiver soon 
after the court ordered document production.[66] Finally, the fifth factor, 
which involved the interests of justice, also supports the conclusion that the 
Keystone documents lost their privilege through inadvertent disclosure. The goal 
of CERCLA is to make liable parties accountable for their share of cleanup 
costs. Discovery of evidence indicating that a party has dissipated assets in an 
attempt to avoid liability is contrary to that goal. Thus, the interests of 
justice require that Keystone's attorney-client privilege be waived for 
information regarding attorneys' billing statements that have been inadvertently 
disclosed.[67]
{32}The court concluded that the balance of the five factors resulted in a 
waiver of the attorney-client privilege for attorneys' billing statements in 
this case. Even though the privilege would normally have protected Keystone's 
documents, the inadvertent disclosure caused a waiver of the privilege.[68]
3. Keystone III
{33}In Keystone III[69] the court explained and clarified the Keystone II 
judgment. Keystone III reiterated that attorney billing statements are 
privileged if they reveal litigation strategy or the nature of the services 
performed. However, the Keystone III court explained that "it is the actual 
content of the document, rather than the type of document, that is 
privileged."[70]
{34}Since Keystone had revealed, albeit inadvertently, a category of information 
concerning Keystone's attorney communications, the attorney-client privilege was 
deemed waived regarding that particular category of information.[71] Keystone 
III [72] reviewed the factors for waiver of the privilege through inadvertent 
disclosure, and affirmed the decision of Keystone II.[73]
4. Keystone IV and Keystone V
{35}In Keystone IV[74] the court used the printed e-mail messages as part of the 
evidence showing that Keystone was disposing of assets in an attempt to avoid 
paying its share of the CERCLA liability.[75] Finally, in Keystone V,[76] the 
court granted the defendants' cross-motions for summary judgment on the issue of 
whether the company who purchased Keystone Sanitation Company is liable for 
Keystone's CERCLA cleanup costs.[77]
B. Evaluation
1. Treat E-mail The Same As Other Documents
{36}Keystone is significant since it treats e-mail just like any other document, 
at least for purposes of the attorney-client privilege. The Keystone court 
allowed discovery of e-mail messages that were printed. Additionally, the court 
stated that the e-mail printouts would be protected by the attorney-client 
privilege, absent a waiver. Thus, according to Keystone, e-mail messages that 
have been printed out should be treated like any other document that contains 
information encompassed by the attorney-client privilege.
2. Unanswered Questions
{37}Although Keystone indicates that, at least in certain circumstances, e-mail 
messages will be treated like other documents for purposes of the 
attorney-client privilege, Keystone does not address whether e-mail is an 
acceptable means of communicating confidential information. 
{38}The question never arose since the e-mails between Keystone Sanitation 
Company and its attorneys had been inadvertently disclosed as printouts rather 
than as electronic documents. Even though Keystone indicates that it is the 
information itself rather than the type of document that matters for purposes of 
the attorney-client privilege, the type of e-mail system used may affect whether 
e-mail is considered an acceptable method for communicating attorney-client 
information. Since Keystone dealt with printed e-mail messages, the type of 
e-mail system used was irrelevant because a printed e-mail message is just like 
any other document printed out on paper. E-mails that are still in electronic 
form, however, are not all the same. The security of e-mail often depends on the 
type of system used.[78]
{39}Regardless of the type of system, the safeguards and precautions utilized 
may also affect whether e-mail is considered an acceptable method of 
communication. Keystone does not address whether additional safeguards and 
precautions, such as encryption of e-mail messages, are required in order to 
protect confidential information sent by e-mail.
{40}Since the Keystone court treats e-mail the same as other documents for 
purposes of the attorney-client privilege, it may be inferred that the court 
considers e-mail a reasonable and acceptable method of communication between 
attorneys and clients. The e-mail messages dealt with in Keystone, however, had 
previously been printed and the printouts were inadvertently disclosed to third 
parties. Consider a situation in which a confidential e-mail message has not 
been printed out, but instead has been inadvertently disclosed to a third party 
while still in electronic form. It is not certain that Keystone would apply.     
          
{41}Keystone did not involve, and the court did not address, the above situation 
in which an e-mail containing confidential information remains in electronic 
form and is inadvertently sent to a third party. However, the fact that an 
e-mail is still in electronic form should not prevent that e-mail from being 
treated like any other document. According to Keystone, it is the content of the 
document, not the type of document, that is privileged.[79] E-mail messages that 
have been inadvertently disclosed while in electronic form should be evaluated 
using the same process the Keystone court used for the e-mail printouts: Is the 
information of a type that is protected by the attorney-client privilege? If so, 
do the five factors for waiver through inadvertent disclosure weigh in favor of 
waiving the privilege?[80]
{42}Ultimately, though Keystone treated the e-mail printouts like any other 
document for purposes of the attorney-client privilege, the case leaves many 
questions unanswered. Keystone does provide some support for the proposition 
that e-mail should be treated like conventional forms of communication. However, 
Keystone does not explain whether e-mail should be treated like other methods of 
communication in all situations, or only where the e-mail has been printed out. 
Keystone, therefore, clarifies only one aspect of the implications of e-mail for 
the attorney-client privilege. The other aspects must be derived from other 
sources, such as ABA opinions, state bar association opinions, the ECPA, and the 
limited number of other cases that have dealt with e-mail.
VI. THE CURRENT STATE OF THE LAW
A. Case Law and the ECPA
{43}The exact implications of e-mail for the attorney-client privilege are not 
completely clear. To the extent that the courts have dealt with e-mail, they 
often treat it in the same way that they treat other documents. The Keystone 
court treated e-mail printouts just like other documents for purposes of 
determining whether the attorney-client privilege was waived through inadvertent 
disclosure to a third party. Other courts have conducted in camera inspection of 
various documents, including e-mail messages, and have decided which documents 
were protected by the privilege and did not have to be disclosed.[81] This 
indicates that courts are treating e-mail messages like conventional documents 
when determining whether the documents are protected by the attorney-client 
privilege.
{44}The ECPA currently protects intercepted e-mail messages. The ECPA was passed 
to protect electronic communications.[82] Based on the ECPA, e-mail 
communications remain privileged even if those communications are illegally 
intercepted.[83] Since intercepting e-mail is illegal, and since intercepting 
e-mail does not result in the e-mail losing its privileged status, intercepted 
e-mail messages remain privileged despite the fact that a third party read them.
{45}Furthermore, since interception of electronic communications is prohibited 
under the ECPA, e-mail communications between attorneys and clients should be 
considered "reasonably" secure for purposes of the attorney-client privilege. 
Although the ECPA does not eliminate the possibility of illegal interception, it 
does make interception a crime.[84] Therefore, since criminal penalties ensue if 
messages are illegally intercepted, a person using e-mail should be able to rely 
on e-mail to provide a reasonable expectation of privacy. Simply because it is 
possible to illegally intercept communications, such as e-mail messages or 
telephone calls, does not mean that those methods of communication are 
automatically not acceptable for protection of the attorney-client 
privilege.[85]
B. Ethical and Professional Responsibilities
{46}The consensus among state bar associations is that e-mail is a reasonable 
and acceptable means of communication between attorneys and clients.[86] Even 
though the ABA and many state bar associations consider e-mail a reasonable and 
acceptable means of attorney-client communication, and even if courts treat 
e-mail messages just like other documents that may be protected by the 
attorney-client privilege, attorneys need to be aware of their ethical and 
professional responsibilities in relation to e-mail. An awareness of those 
responsibilities allows attorneys to make decisions that afford maximum 
protection of confidential information and communications.
1. Duty to Protect Confidential Information
{47}ABA Model Rule of Professional Conduct 1.6(a) states that "a lawyer shall 
not reveal information relating to representation of a client unless a client 
consents after consultation, except for disclosures that are impliedly 
authorized in order to carry out the representation . . ."[87] Attorneys, 
therefore, have a duty to protect client information and to prevent confidential 
information from being revealed.[88]
2. Duty to Obtain Client Consent
{48}All attorneys have a duty to obtain client consent before revealing any 
confidential client information, regardless of the method of communication 
used.[89] Additionally, some state bar associations recommend that attorneys get 
client consent before sending confidential information by e-mail.[90] Not only 
is client consent one way to reduce the risk of malpractice liability,[91] 
obtaining client consent reduces the possibility of sacrificing the 
attorney-client privilege.[92] In order to obtain the client's consent, the 
attorney should discuss the attorney-client privilege with the client, explain 
the various methods of communication available, identify the risks associated 
with each method of communication, and determine if the client wishes to 
communicate by e-mail.[93]
3. Duty to Abide by the Client's Decision
{49}After discussing the attorney-client privilege with the client and obtaining 
the client's consent for specific methods of transmission, the attorney has a 
duty to follow the client's decision as to what methods of transmission may be 
used.[94] If a client wants to limit the type and/or amount of information 
transmitted by e-mail, for instance, the attorney must abide by those 
limitations.
4. Duty to Use Communication Methods that Afford a Reasonable Expectation of 
Privacy
{50}In addition to protecting confidential information, obtaining client consent 
prior to revealing confidential client information, and abiding by the client's 
decision, attorneys also have a duty to use methods of communication that afford 
a "reasonable expectation of privacy."[95] Thus, if the attorney is not sure of 
the privacy afforded by a particular e-mail system, he may be better off using a 
different method to transmit the information.[96] However, even though an e-mail 
system may not be absolutely secure,[97] it may still be used. As long as the 
system is deemed reasonably secure, it is an acceptable method of communicating 
client information.[98]
C. Safeguards
{51}Many state bar association opinions and bar journal articles indicate that 
e-mail is a reasonable and acceptable means of communication.[99] Still, until 
the courts declare e-mail a reasonable and acceptable method of communication, 
attorneys in all states must be aware of the safeguards that may be necessary in 
order to protect the attorney-client privilege.
1. Encryption
{52}Encryption involves using mathematical functions to code an e-mail message. 
The mathematical functions are then interpreted using a "key." The key ensures 
that the message is decoded only by the sender and the intended recipient. 
Unencrypted e-mail messages look like regular, readable text. By encrypting the 
e-mail and thereby putting it into a code, the message cannot be read unless the 
key is used to interpret the code.[100]
{53}Although encryption will protect against inadvertent disclosure, encryption 
has some drawbacks. First, the sender and all receiving parties must utilize the 
same software.[101] Second, the keys must be programmed correctly in the 
sender's computer as well as in all recipients' computers in order for the 
encrypted message to be decoded and read.[102] Third, encryption programs take 
up a large amount of computer memory. Thus, a law firm with a number of 
attorneys using encryption on the same system may experience a network 
overload.[103] Fourth, since encryption programs tend to be expensive, clients 
and even some law firms may not be able to afford it.[104] Finally, even if all 
four of the previously discussed drawbacks are overcome, encryption still may 
not guarantee privacy since even the best available encryption systems can be 
"defeated."[105]
2. Disclaimer
{54}Including a disclaimer with each e-mail message may also protect the 
attorney-client privilege. A disclaimer lets the recipient know that the e-mail 
message contains confidential information and that if the e-mail is 
inadvertently sent to an unintended recipient, the e-mail should not be read, 
copied or forwarded.[106]
3. Digital Signature
{55}Digital signatures are another available option for protecting the 
attorney-client privilege. Digital signatures "authenticate the identity of 
senders and receivers; ... protect the integrity of the documents, insuring that 
[the] content has not been changed; and ... provide for encryption of documents 
and communications."[107] 
4. Password
{56}Making attached documents accessible only through use of a password is 
another safeguard for protecting privileged documents.[108] The password 
prevents the document from being opened unless the recipient enters the correct 
password.
5. Common Sense
{57}Although encryption, disclaimers, and passwords may help protect 
confidential information sent by e-mail, attorneys should still use common sense 
when deciding whether to use e-mail to transmit information. "A profession that 
prides itself on confidentiality should be careful about utilizing modes of 
communication where the risk is difficult to assess."[109] If the attorney or 
client has any doubts about the security of the e-mail system used, it may be 
best to transmit the information through some method other than e-mail. 
Generally, the more confidential and sensitive the information is, the more 
protection it should be afforded. Until the courts set definitive guidelines for 
using e-mail to transmit confidential information, attorneys and clients may 
want to use a method other than e-mail to transmit highly confidential or highly 
sensitive information.[110]
{58}Attorneys should also take a few moments before sending an e-mail to double 
check the address to ensure that the message is going to the correct 
person.[111] Another precaution is to re-read the e-mail and think about what 
was written. E-mail should be treated like a letter or a memo. This means that 
attorneys should not allow the "informality" and "instantaneous nature" of 
e-mail to prompt them to express thoughts, opinions, or insights that they would 
not express in a letter or memo.[112]           
D. Conclusion
{59}Although the law is not completely clear on exactly how to handle the 
attorney-client privilege within the context of e-mail messages, courts will be 
forced to address this issue in the future as it is likely that e-mail will 
continue to be used in the practice of law. The novelty and uncertainty 
surrounding the Internet may make electronic communications seem more risky than 
other forms of communication, such as telephones and faxes, that have been used 
in the past and are more commonplace. Since the risks are essentially the same, 
however, e-mail should not be treated any differently than postal mail, 
telephones, and faxes for purposes of the attorney-client privilege.
{60}Ultimately, no method of communication guarantees absolute confidentiality. 
E-mail, postal mail, telephone, and fax communications are not completely 
secure; each of them may be lost, intercepted, or inadvertently disclosed to an 
unintended third party. The security of e-mail messages largely depends on the 
type of system used [113] and on how careful the sender is about checking to 
make sure the address is correct.[114]  The risk that information may be 
intercepted does not mean that e-mail messages should not be privileged. Postal 
mail, telephone conversations, and faxes are also susceptible to interception, 
but they remain privileged. E-mail should be treated the same way.[115]
{61}Courts may be wary of e-mail and the new technology involved with it.  
However, "[e]ach time new technology is introduced, the courts have been wary. 
Six hundred years ago, paper was rejected as a means of commerce, although it 
eventually replaced parchment for legal use."[116] Until the courts indicate 
acceptance of e-mail and declare it a "reasonably" secure method of 
communication for the protection of confidentiality, attorneys and clients 
should take precautions when using e-mail for confidential communications.



ENDNOTES
[*] Karen M. Coon earned a B.A. in English in 1999 from Indiana University of 
Pennsylvania, and will receive her J.D. in May 2002 from the University of 
Richmond School of Law. She is currently a Senior Staff Member of the Richmond 
Journal of Law and Technology. Ms. Coon would like to thank the Journal of Law 
and Technology staff members and Professor Deborah Tussey for providing 
editorial and critical reviews of her work.
[1]. 47 U.S.C. § 605 (1994).
[2]. 18 U.S.C. §§ 2510 - 2522 (1994).
[3]. United States v. Keystone Sanitation Co., 867 F. Supp. 275 (M.D. Pa. 1994) 
(hereinafter "Keystone I"); United States v. Keystone Sanitation Co., 885 F. 
Supp. 672 (M.D. Pa. 1994) (hereinafter "Keystone II"); United States v. Keystone 
Sanitation Co., 899 F. Supp. 206 (M.D. Pa. 1995) (hereinafter "Keystone III"); 
United States v. Keystone Sanitation Co., 903 F. Supp. 803 (M.D. Pa. 1995) 
(hereinafter "Keystone IV"); United States v. Keystone Sanitation Co., 1996 U.S. 
Dist. LEXIS 13651 (M.D. Pa. 1996) (hereinafter "Keystone V").
[4]. FED. R. CIV. P. 26(b)(1). See also FED. R. EVID. 501.
[5]. MODEL RULES OF PROF'L CONDUCT Rule 1.6(a) (1998). Rule 1.6(a) states, "a 
lawyer shall not reveal information relating to representation of a client 
unless a client consents after consultation, except for disclosures that are 
impliedly authorized in order to carry out the representation."
[6]. David Hricik, Lawyers Worry Too Much about Transmitting Client Confidences 
by Internet E-mail, 11 GEO. J. LEGAL ETHICS 459, 470-71 (1998) (citing 8 WIGMORE 
ON EVIDENCE § 2292 at 554 (McNaughton rev. 1961)); see also Joshua M. Masur, 
Comment, Safety in Numbers: Revisiting the Risks to Client Confidences and 
Attorney-Client Privilege Posed by Internet Electronic Mail, 14 BERKELEY TECH. 
L.J. 1117, 1121 (1999) (quoting Wigmore). Compare Wigmore's statement of the 
elements of the attorney-client privilege, with Masur's statement of the 
elements of the attorney-client privilege, at 1121-22 (outlining the elements 
for the attorney-client privilege as articulated in Upjohn Co. v. United States, 
449 U.S. 383, 394-395 (1981)), and RESTATEMENT (THIRD) OF THE LAW GOVERNING 
LAWYERS § 118 (1998).
[7]. In re Horowitz, 482 F.2d 72, 81 (1973) (citing 8  WIGMORE ON EVIDENCE sec. 
2291, supra note 6, at 554). See also State v. Canady, 460 S.E. 2d 677, 684 (W. 
Va. 1995) (stating that two policies are in conflict: "protect[ing] the 
integrity and fairness of the factfinding process by requiring full disclosure 
of all relevant facts connected with the impending litigation,....[and] 
promot[ing] full and frank consultation between a client and a legal advisor by 
removing the fear of compelled disclosure of information"). 
[8]. See Upjohn, 449 U.S. at 389 (citing 8 WIGMORE ON EVIDENCE sec. 2290, supra 
note 6, at 542); see also Heidelberg Harris, Inc. v. Mitsubishi Heavy Indus., 
No. 95-C0673, 1996 U.S. Dist. LEXIS 19274, at *27 (N.D. Ill. Dec. 18, 1996), 
United States v. Fisher, 692 F. Supp. 488, 490 (E.D. Pa. 1988), In re Grand Jury 
Investigation, 599 F.2d 1224, 1235 (3rd Cir. 1979).
[9]. Upjohn, 449 U.S. at 389. See also Gordon v. Newspaper Assoc. of Am., 51 Va. 
Cir. 183, 186 (2000) (explaining that the "privilege extends only to 
communications and not to facts" and a client "may not refuse to disclose any 
relevant fact within his knowledge merely because he incorporated a statement of 
fact into his communications to his attorney").
[10]. Upjohn, 449 U.S. at 390-91 (quoting ABA Code of Professional 
Responsibility, Ethical Consideration 4-1). See also Hickman v. Taylor, 329 U.S. 
495, 511 (1947) (indicating that an attorney needs to have all relevant 
information in order to properly prepare the client's case).
[11]. Upjohn, 449 U.S. at 389 (quoting 8 WIGMORE ON EVIDENCE sec. 2290, supra 
note 6). Detailed discussion about waiver is beyond the scope of this note. For 
additional information and discussion about waiving the attorney-client 
privilege, see Amy M. Fulmer Stevenson, Comment, Making a Wrong Turn on the 
Information Superhighway: Electronic Mail, the Attorney-Client Privilege and 
Inadvertent Disclosure, 26 CAP. U.L. REV. 347, 359 (1997).
[12]. 18 U.S.C. §§ 2510- 2522 (1994).
[13]. 47 U.S.C. § 605 (1994).
[14].  18 U.S.C. § 2511 (1994 & Supp. 1998).
[15]. 18 U.S.C. § 2511(1)(a) (1994).
[16]. 18 U.S.C. § 2517(4) (1994).
[17]. See Robert A. Pikowsky, Privilege and Confidentiality of Attorney-Client 
Communications via E-mail, 51 BAYLOR L. REV. 483, 485 (1999) (explaining that 
"the Internet is a 'network of networks'").
[18]. Hricik, supra note 6, at 465-66.
[19]. Electronic Records Management, 36 C.F.R. § 1234.2 (2000).
[20]. See generally Hricik, supra note 6, at 462-69 (discussing the history of 
the Internet, overview of programs usable over the Internet, and how the 
Internet transfers e-mail); see generally Craig D. Tindall, E-mail Ethics: 
Privileged and Confidential Internet Communications, 36 ARIZ. ATT'Y 10, 34 (Mar. 
2000) (explaining what "packets" are and how they are transmitted).
[21]. ABA Comm. on Ethics and Prof'l Responsibility, Formal Op. 99-413 ¶ 18 
(1999) (hereinafter "ABA Formal Op. 99-413"), available at http://www. 
abanet.org/cpr/fo99-413.html. But cf. Toby Brown, Confidentiality on the 
Internet, 12 S.C. LAW. 28 (arguing that the Internet does not afford a 
reasonable expectation of privacy); Masur, supra note 6, at 1119-20 (contending 
that the ABA's Formal Op. 99-413 is problematic because it "betray[s] the 
long-standing mandate that the attorney-client privilege ought to be treated as 
the exception to the general rule that all testimony should be admitted as 
evidence before the court," and because the Committee failed to base its 
conclusions on sound technological support).
[22]. ABA Formal Op. 99-413. Formal Op. 99-413 ¶ 18 explains that the process of 
sending e-mail is "virtually indistinguishable from the process of sending a 
fax," and that, as a result, intercepting faxes and e-mails requires "more 
effort and . . . sophistication" than eavesdropping on a telephone conversation 
via a telephone tap.
[23]. ABA Formal Op. 99-413, supra note 21 at ¶ 20 (explaining that the main 
relevant distinction between direct e-mail systems and private e-mail systems is 
the "greater risk of misdirected e-mails in a private system. Messages 
mistakenly may be sent throughout a law firm or to unintended recipients within 
the client's organization.").
[24]. Hricik, supra note 6, at 486-87. See State v. Canady, 460 S.E. 2d 677, 689 
(W. Va. 1995) (indicating that internal e-mail messages may be privileged). But 
see Keystone III, 903 F. Supp. 803, 808 (M.D. Pa. 1995) (indicating that 
inadvertent disclosure does not automatically waive the attorney-client 
privilege) (citing Keystone II, 885 F. Supp. 672 (M.D. Pa. 1994)).
[25]. Hrick, supra note 6, at 487 (referring to Illinois State Bar Advisory Op. 
on Prof'l Conduct Op. No. 96-10 (May 16, 1997), and S.C. Ethics Advisory Op. 
97-08 (June 1997), and pointing out that "any internal network is only as secure 
as the work stations having access to it."). See also ABA Formal Op. 99-413, 
supra note 21, at n.25 (1999).
[26]. See Hrick, supra note 6, at 487; see also ABA Formal Op. 99-413, supra 
note 21, at ¶ 22.
[27]. See Hricik, supra note 6, at 487.
[28].See ABA Formal Op. 99-413, supra note 21, at ¶ 24; see also Hricik, supra 
note 6, at 487. Even though on-line service providers are essentially public 
access networks that do not obligate users to maintain confidentiality, the 
attorney-client privilege may still protect information stored in private 
places, such as an e-mail mailbox. Fourth Amendment issues arise in conjunction 
with privately stored information. For a discussion of the relevant Fourth 
Amendment issues, see Pikowsky, supra note 17, at 529, and Hricik, supra note 6, 
at 478-79, 488, 490 n.172.
[29].18 U.S.C. § 2511(3)(a)-(b) provides that:
    (3)(a) Except as provided in paragraph (b) of this subsection, a person or 
    entity providing an electronic communication service to the public shall not 
    intentionally divulge the contents of any communication (other than one to 
    such person or entity, or an agent thereof) while in transmission on that 
    service to any person or entity other than an addressee or intended 
    recipient of such communication or an agent of such addressee or intended 
    recipient.
    (b) A person or entity providing electronic communication service to the 
    public may divulge the contents of any such communication
            (i) as otherwise authorized in section 2511(2)(a) or 2517 of this 
    title;
            (ii) with the lawful consent of the originator or any addressee or 
    intended recipient of such communication;
            (iii) to a person employed or authorized, or whose facilities are 
    used, to forward such communication to its destination; or
            (iv) which were inadvertently obtained by the service provider and 
    which appear to pertain to the commission of a crime, if such divulgence is 
    made to a law enforcement agency.
    18 U.S.C. § 2511(3)(a)-(b) (1994 & Supp. 1998).
30. ABA Formal Op. 99-413, supra note 21, at ¶¶ 27-33 (1999) (discussing 
Internet e-mail).
31. Lou Parker & Dave Gardner, Technology: Using the Internet - Ethical, 
Privileged or Malpractice?, 8 NEVADA LAW 20 (2000).
32. See ABA Formal Op. 99-413, supra note 21, at ¶ 30. For a detailed discussion 
of internet service providers, see Deborah M. McTigue, Marginalizing Individual 
Privacy on the Internet, 5 B.U.J. SCI. & TECH. L. 5 (1999).
33. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 112 cmt. d (Tentative 
Draft 1998). See ABA Formal Op. 99-413, supra note 21.
34. Pikowsky, supra note 17, at 579 (stating that "the existence of a reasonable 
expectation of privacy permits an attorney to discuss client confidences via 
e-mail without violating the ethical duty to safeguard those confidences.").
35. ACLU. v. Reno, 929 F. Supp. 824, 834 (E.D. Pa. 1996), aff'd 521 U.S. 844 
(1997) ("One method of communication on the Internet is via electronic mail, or 
'email,' comparable in principle to sending a first class letter. One can 
address and transmit a message to one or more other people. Email on the 
Internet is not routed through a central control point, and can take many and 
varying paths to the recipients. Unlike postal mail, simple email generally is 
not "sealed" or secure, and can be accessed or viewed on intermediate computers 
between the sender and recipient (unless the message is encrypted)"). See also 
Hricik, supra note 6, at 481 (discussing e-mail and postal mail). For an 
in-depth discussion of ACLU. v. Reno, see Dharmesh S. Vashee, Note, ACLU v. 
Reno: Congress Places Speed Bumps on the Information Superhighway, 6 RICH. J.L. 
& TECH. 16 (1999), at http://www.richmond.edu/jolt/v6i3/note4.html.
36. ACLU v. Reno, 929 F. Supp. at 834.
37. See Craig D. Tindall, E-mail Ethics: Privileged and Confidential Internet 
Communications, 36 ARIZ. ATT'Y 10, 34 (Mar. 2000); Brian D. Wassom, A Reasonable 
Expectation of Privacy: Can Michigan Attorneys Safely Use Unencrypted Internet 
E-Mail for Confidential Communications?, 78 MICH. B.J. 590, 590 (1999).
38. See Wassom, supra note 37, at 590 (explaining that it is difficult for 
eavesdroppers to intercept e-mails since they "must know exactly what they are 
looking for and when it will be transmitted, and be fortunate enough to both 
guess the path that the messages will take and discover the packets with 
significant information").
39. ABA Formal Op. 99-413, supra note 21, at ¶ 10. See also Hricik, supra note 
6, at 479 (stating that "[t]raditional land-line telephone conversations are 
confidential... because such communications are made under circumstances that 
reasonably ensure their confidentiality").
40. See ABA Formal Op. 99-413, supra note 21, at ¶ 7; see also State v. Canady, 
460 S.E.2d 677, 689-90 (W. Va. 1995) (quoting Upjohn, 449 U.S. 383, 388 (1981), 
and concluding that both e-mail and fax are privileged).
41. ABA Formal Op. 99-413, supra note 21, at ¶ 18 (explaining that the process 
of sending e-mail is "virtually indistinguishable from the process of sending a 
fax," and that, as a result, intercepting faxes and e-mails requires "more 
effort and technical sophistication" than eavesdropping on a telephone 
conversation via a telephone tap).
42. Hricik, supra note 6, at 485 and n.154.
43. See Tindall, supra note 37, at 34 (explaining that e-mail messages are "most 
vulnerable to security breaches" right before and right after transmission since 
the message "resides in at least two computers" when it is sent and when it is 
received).
44. See, e.g., Steven A. Heinrich & Roxana Dastur Malladi, News of the Wired: 
Security, the Internet and the Networked OfficeBProblems for Law Offices, 56 OR. 
ST. B. BULL. 15, 18 (1995) (stating that "[m]any people believe that if you 
'delete' a file from a floppy disk, it is gone forever").
45. This is assuming that the unintended recipient has a fax machine hooked up 
to the phone line dialed.
46. For additional information about the similarities and differences between 
faxes and e-mails, see ABA Formal Op. 99-413, supra note 21, at ¶ 15.
47. Malvern U. Griffin & Aaron P. Maurer, Netethics: Concerns Regarding E-mail 
and World Wide Web Use by Attorneys, 59 ALA. LAW. 44 (1998).
48. Richard M. Georges, The Impact of Technology on the Practice of Law - 2010, 
71 FLA. B.J. 36, 38 (1997).
49. Stevenson, supra note 11, at 350.
50. Keystone I, 867 F.Supp. 275 (M.D. Pa. 1994).
51. Id. at 279. Although there were numerous counterclaims, basically the 
counterclaims involved "judicial review of certain actions taken by the EPA, the 
[Pennsylvania Hazardous Sites Cleanup Act], and recoupment." The applicable 
CERCLA section can be found at 42 U.S.C. § 9607 (1994).
52. Id. at 284.
53. Keystone II, 885 F. Supp. 672 (M.D. Pa. 1994).
54. Id. at 675.
55. Id.
56. Id.
57. Id. Keystone also claimed that these documents were protected by the 
work-product doctrine. The work-product doctrine is beyond the scope of this 
case note. For information on the work-product doctrine, see Fed. R. Civ. P. 
26(b)(3) and Hickman v. Taylor, 329 U.S. 495 (1947).
58. Keystone II, 885 F. Supp. at 676.
59. Id. at 675.
60. Id.
61. Id. at 676.
62. Id.
63. Keystone II, 885 F. Supp. at 676.
64. Id.
65. Id.
66. Id. The court noted that document production was ordered by the court on 
August 26, 1994, and that the parties began arguing about waiver in early 
September.
67. Keystone II, 885 F. Supp. at 676.
68. Id.
69. Keystone III, 899 F. Supp. 206 (M.D. Pa. 1995).
70. Id.
71. Id.
72. Id.
73. Id. at 208.
74. Keystone IV, 903 F. Supp. 803 (M.D. Pa. 1995).
75. Id. at 811-12.
76. 1996 U.S. Dist. LEXIS 13651 (M.D. Pa. 1996).
77. Id. The court explained that it will "require Keystone's assets to be looked 
to first to satisfy its portion of CERCLA liability." Id. at *44. 
78. See supra Part IV.B.
79. Keystone III, 899 F. Supp. 206, 207 (M.D. Pa. 1995).
80. Keystone II, 885 F. Supp. 672, 675-76 (M.D. Pa. 1994).
81. Heidelberg Harris, Inc. v. Mitsubishi Heavy Indus., No. 95-C0673, 1996 U.S. 
Dist. LEXIS 19274, at *7 (N.D. Ill. Dec. 18, 1996).
82.18 U.S.C. §§ 2510-2533 (1994). For a discussion of the ECPA, see supra Part 
III.
83. Hricik, supra note 6, at 471. See 18 U.S.C. § 2517(4) (1994) (stating that 
otherwise privileged communications remain privileged even if intercepted).
84.Various states also have laws making interception a crime. See, e.g., GA. 
CODE ANN. § 16-11-62 (1999 & Supp. 2000); UTAH CODE ANN. § 77-23a-4 (1999); Neb. 
Rev. Stat. § 86-702 (1999).
85. ABA Formal Op. 99-413, supra note 21, at ¶ 3 (stating that "[i]t is 
not...reasonable to require that a mode of communicating information must be 
avoided simply because interception is technologically possible").
86. See, e.g., AK Bar Ass'n Ethics Op. 98-2 (1998) (stating that "a lawyer may 
ethically communicate with a client on all topics using electronic mail"); AZ 
Op. 97-04 (Apr. 7, 1997), available at 
http://www.legalethics.com/ethics.law?state=Arizona#opinions (allowing the use 
of e-mail to communicate with clients, but recommending that encryption or other 
precautionary measures be taken); KY Op. E-403 (July 1998), available at 
http://www.uky.edu/Law/kyethics/kba403.htm (authorizing the transmission of 
unencrypted e-mail); S.C. Ethics Advisory Op. 97-08 (1997), available at 
http://www.scbar.org/apps/reference/EthicsOpinions/ethicsopinion.dbm?OpinionID=97%2D08&OpinionType=ethics 
(concluding that the "[u]se of electronic mail will not affect the 
confidentiality of client communications). For links to state ethics opinions, 
see LegalEthics.com: Internet Legal Services, at www. legalethics.com/index/law 
(last visited Oct. 1, 2000). For links to all state bar associations, see State 
Bar Ass'ns, at http://www. bestcase.com/statebar.htm (last visited Oct. 1, 
2000). For an extensive list of bar association opinions e-mail and encryption, 
see ABA Formal Op. 99-413, supra note 21, at n. 40.
87. MODEL RULES OF PROF'L CONDUCT, supra note 5.
88. "It should be noted that a lawyer's negligent use of any medium - including 
the telephone, mail and fax - may breach the duty of confidentiality." ABA 
Formal Op. 99-413, supra note 21, at n.6.
89. MODEL RULES OF PROF'L CONDUCT, supra note 5. Rule 1.6(a) states: "a lawyer 
shall not reveal information relating to representation of a client unless the 
client consents after consultation, except for disclosures that are impliedly 
authorized in order to carry out the representation." Id. See also RESTATEMENT 
(THIRD) OF THE LAW GOVERNING LAWYERS, supra note 6, at § 112(1)(a) (stating that 
"the lawyer may not use or disclose confidential client information . . . if 
there is a reasonable prospect that doing so will adversely affect a material 
interest of the client or if the client has instructed the lawyer not to use or 
disclose such information").
90. See Griffin, supra note 47, at 47; Evan R. Shirley, Dilbert, Supermodels & 
Confidentiality of E-mail Under Hawaii Law, 3 HAWAII B.J. 6, 10-11 (1999); 
Wassom, supra note 37, at 593.
91. Wassom, supra note 37, at 593.
92. Griffin, supra note 47, at 47.
93. Shirley, supra note 90, at 11.
94. MODEL RULES OF PROF'L CONDUCT R. 1.2(a) (1999). Compare  MODEL RULES OF 
PROF'L CONDUCT R. 1.2(a) (1999) (stating that "a lawyer shall abide by a 
client's decisions concerning the objectives of representation...and shall 
consult with the client as to the means by which they are to be pursued"), with 
Model Rules of Prof'l Conduct R. 1.2(a) (Proposed Rule 2000), available at 
http://www. abanet.org/cpr/rule12.html (stating that "a lawyer shall abide by a 
client's decisions concerning the objectives of representation and may take such 
action on behalf of the client as is impliedly authorized to carry out the 
representation").
95. ABA Formal Op. 99-413, supra note 21, at ¶ 6; see also RESTATEMENT (THIRD) 
OF THE LAW GOVERNING LAWYERS sec. 112 cmt. d (Tentative Draft 1998) (explaining 
that confidential client information must be "acquired, stored, retrieved, and 
transmitted under systems and controls that are reasonably designed and managed 
to maintain confidentiality").
96. "Particularly strong protective measures are warranted to guard against the 
disclosure of highly sensitive matters. Those measures might include the 
avoidance of e-mail, just as they would warrant avoidance of the telephone, fax, 
and mail." ABA Formal Op. 99-413, supra note 21, at ¶ 5.
97.See Heinrich, supra note 44, at 16 (stating that "no system is completely 
impenetrable").
98. See ABA Formal Op. 99-413, supra note 21, at ¶ 3 (stating that "[i]t is not 
. . . reasonable to require that a mode of communicating information must be 
avoided simply because interception is technologically possible"); Shirley, 
supra note 90 (explaining that "lawyers are not obligated to use every available 
means of insuring that confidential communications are not intercepted"); 
Tindall, supra note 37, at 33 (noting the ABA has opined that "[m]ethods used to 
communicate with clients . . . need not offer absolute privacy, but only 
reasonable privacy").
99. See State Bar Ass'n opinions, supra note 85.
100. Stevenson, supra note 11, at 353-54; Pikowsky, supra note 17, at 564 
(providing background information about encryption and how encryption works); 
Daniel E. Orr, Confidentiality in an Electronic World Using Encryption in 
Everyday Law Practice, ABA LAW PRACTICE TODAY, (2000), available at 
http://www.abanet.org/lpm/newsletters/net2d/s98orr.html (last visited October 8, 
2000). For general information about encryption and about an Internet company 
that provides security and encryption services for attorneys and law firms, see 
www.jdusa.net.  For more information on encryption, see Steven Levy, Crypto: How 
They Beat Big Brother, NEWSWEEK, Jan. 15, 2001, at 42.
101. Wassom, supra note 37, at 590. See generally, Georges, supra note 48, at 38 
(providing information about PGP (Pretty Good Privacy), an encryption software 
package). For more information about PGP, see www.pgp.com.
102. Wassom, supra note 37, at 590.
103. Id.
104. Id.
105. Id. at 590-91.
106. Griffin, supra note 47, at 47. Griffin & Maurer provide an example of a 
disclaimer:
    Notice: This Electronic Mail (e-mail) contains confidential and privileged 
    information that is intended only for the individual or party identified 
    directly below, and not necessarily the addressee. Do not read, copy or 
    forward this e-mail unless you are the intended recipient. If you are not 
    the intended recipient, please call firm name at phone number and ask for 
    sender. In addition please return this e-mail using a reply command and then 
    delete all copies. Thank you.
See also Wassom, supra note 37, at 592-93; Tindall, supra note 37, at 35-36.
107. Toby Brown, Confidentiality on the Internet, 12 S.C. LAW. 28, 29 (2000).
108. See Wassom, supra note 37, at 593.
109. Brown, supra note 107, at 29.
110. See ABA Formal Op. 99-413, supra note 21 (stating that a method other than 
e-mail should be used "when the lawyer reasonably believes that confidential 
client information being transmitted is so highly sensitive that extraordinary 
measures to protect the transmission are warranted"); Tindall, supra note 37, at 
36 (stating that "[e]-mail should not be used to convey highly sensitive 
information). See also Wassom, supra note 37, at 593 (exploring the importance 
of "heightened attorney awareness and common-sense precautions).
111. Wassom, supra note 37, at 593; Stevenson, supra note 11, at 373.
112. Shirley, supra note 90, at 9. See also Thomas R. Haggard, Legal Writing in 
the Electronic Age, 11 S.C. LAW 12 (1999) (recommending that attorneys "pretend 
that [e-mail messages are] still going out under the letterhead of the firm").
113. For further discussion of direct e-mail, private e-mail, on-line service 
providers, and internet e-mail systems and the risks inherent in each system, 
see ABA Formal Op. 99-413, at ¶ 17; see supra Part IV B.
114. See Hricik, supra note 6, at 496 (explaining that the "potential for 
misdirecting an e-mail appears no greater than that of misdirecting a fax").
115. See Peter R. Krakaur, Treat E-mail Like Other Communications: An Argument 
Against Mandatory Encryption of Attorney-Client Communications (Jan. 1, 1998), 
at http://www.llrx.com/features/e-mail.htm. See generally ABA Formal Op. 99-413, 
supra note 21, at ¶¶ 3, 35-36 (explaining that the possibility of interception 
of e-mail, does not make e-mail an unreasonable method of communication); 
Hricik, supra note 6, at 485 (arguing that using a fax machine, even though it 
is possible for a fax to be misdirected or intercepted, does not destroy the 
privilege).
116. Hricik, supra note 6, at 507.



Related Browsing
1. http://cyber.lp.findlaw.com/privacy/attorney_client.html. Findlaw, Cyberspace 
Law Center, Privacy, Attorney-Client Privilege. An index page that lists several 
articles on different aspects of attorney-client privilege in email 
communications. Also lists articles discussing discovery and email documents.

2. http://www5.law.com/tx/today00/ethics0920.htm. Seminar discussion among 
academics and practitioners discussing the practical consideration of 
communicating by email with clients.

3. http://www.bamsl.org/lpm/email.htm. Bar Association of Metropolitan Saint 
Louis, Law Practice Management Committee. Article by practicing attorney titled 
"Email and the Attorney-Client Privilege." The article applies traditional 
evidence rules to the relatively new communication form of email.

4. http://cyber.lp.findlaw.com/privacy/attorney_client.html. America's Law 
Links, Resource Center, Ethics and Professional Responsibility, Attorney/Client 
Relations. Includes a variety of articles on the attorney-client privilege in 
general and several articles on email and the attorney-client privilege.

5. http://www.agin.com/aigc/tic51.html. Compliance: The Attorney-Client 
Privilege by J. Alden Lincoln. It often becomes necessary for company officials 
to confide very sensitive information to legal counsel in the course of 
obtaining legal advice. 

6. http://www.kuesterlaw.com/netethics/bjones.htm. Client Confidentiality: A 
Lawyer's Duties with Regard to Internet E-Mail by Robert L. Jones. Article on 
attorney's duties to protect client disclosures in electronic media from 
hackers.

7. http://www.marinlaw.net/confidentiality/confidentiality.html. Cyber Security, 
Confidentiality & Encryption. Checklist of issues, resources, articles and tools 
on the issues of security and confidentiality.

9. http://albany.bcentral.com/albany/stories/1998/10/26/focus5.html. New-age 
Communications Can Thwart Attorney-client Privilege by Andrew C. Rose. Discusses 
how attorney-client privilege may be waived when information is communicated via 
cell phone, voice mail, e-mail and other electronic communications.

10. http://www.bamsl.org/lpm/email.htm. E-Mail and the Attorney-Client Privilege 
by Arhtur L. Smith. Discusses whether e-mail communications may be protected by 
attorney-client privilege.

11. http://www.infowar.com/law/99/law_030999a_j.shtml. E-Mail and the 
Attorney-Client Privilege on Infowar.com. Reviews whether e-mail is a secure 
enough medium to be considered for attorney client privilege protection.

12. http://www.sw.com/acpriv.htm. Internet E-Mail and the Attorney-Client 
Privilege by Todd H. Flaming. The author argues that even unencrypted e-mail 
messages between lawyers and clients should be subject to the attorney-client 
privilege. 

13. http://www.gdf.com/online.htm. Communicating with Clients On-Line: 
Confidentiality, Privilege and Authenticity by Peter D. Kennedy. Discusses 
issues of attorney-client privilege as regards e-mail communication and offers 
suggestions on how to communicate with clients via e-mail without waiving the 
privilege status.





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