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Partly Cloudy with a Chance of Sanctions

By Jonathan Sablone and Robin E. Stewart

Practitioners of a certain age will recall the days when e-mail and cellular telephone usage were not considered secure modes of communication for the discussion of confidential or privileged matters. It was not uncommon for clients to ask that anyone participating on a conference call via cellular phone drop off when particularly sensitive information was to be discussed. Similarly, to the extent e-mail was considered an effective mode for business communication, it was never to be used for the transmission of privileged information. These mores were in place throughout the 1990s.

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:

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