11.03. Confidentiality and Technology

Technological advances have created new issues and challenges in the area of confidentiality.  There are now a number of ways that a lawyer can violate the obligation of confidentiality either intentionally or inadvertently.  It is important to think about these concerns as you enter practice.  Some of these issues might arise in areas where you would not even think about.

Lee Lawyer represents Chloe Client in the purchase of a business.  As the negotiations are on-going, Lee wants to keep Client “in the loop” on the discussions.  Therefore, Lawyer “bcc’s” Client on all emails that Lawyer sends to opposing counsel.  Is it ethical for Lawyer to do this? [N.Y. State Bar Ass’n Comm. On Prof’l Ethics, Op. 1076 (Dec. 8, 2015)]

Yes.  A lawyer may ethically “bcc” a client on an email.  However, the lawyer should be wary of doing so.  A client may inadvertently press “reply all” in response to the email – including opposing counsel on the communication.  The ethics opinion recommends that a lawyer instead forward the email to the client instead of using the “bcc” function to ensure that the communications remain confidential.