QUESTION: Attorney has submitted a electronic mail consent form for approval. Is this form appropriate? ANSWER: It is unlikely that any form could be developed which would adequately explain the concerns for all clients, without additional oral communication. Whether e-mail communication is appropriate may depend on the setting in which the client will send and receive e-mail as well as the nature of the particular communication. Any communication with the client regarding this subject should be in plain language, as much as possible, and should discuss the various ways in which e-mail might be intercepted or accessed by someone else. E-mail is not the same as other types of communications because it is so new that many people are not aware of the basic risks of interception through technology or access. Informal Opinions 980137, 980029, 970230 970161 and 970010, also address this topic. The risk that e-mail will be intercepted as it is actually traveling on the internet is only one type of risk. One example of another type of risk would be a client who sends and receives e-mail from a home computer. That client may not be aware of the risk of having someone obtain that e-mail through access to the same internet account or to e-mail stored on the computer itself. Computers are often set up to store all e-mail sent and received. Additionally, many computers create “temporary” files which essentially form a temporary backup system. A client may be unaware of these possibilities or may not have considered them. Whether these concerns will be significant to a particular client will depend upon the nature of the legal matter and communication. Clients who send and receive e-mail from the work place will need to consider similar types of issues but the risks of access, etc., will vary greatly depending on the work setting.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

To request an Informal Opinion, please visit: http://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.

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