Cross, Gunter, Witherspoon & Galchus E-Newsletter

The legal profession is no stranger to adaptation. Indeed, the doctrine of stare decisis and the fundamental principles of the common-law are evolutionary by their very nature, and so is human technology. In the past decade or two, the attorney’s ethical duty of confidentiality, the attorney-client privilege, and the work-product doctrine, have all been affected by innovations in efficiency of communication like the fax machine, computer, cellular phone, and e-mail. The legal profession’s various procedural and ethical rules invariably lag behind the latest invention, and new ethical issues arising from technology disputes are common, making reluctant technophiles out of many practitioners.

The latest legal gremlin to cause mischief in litigation pertains to the inadvertent disclosure of metadata, and, to a lesser extent, pre-production deletion of metadata. The latter practice is becoming more and more common and is normally not an issue. When the metadata is under evidentiary dispute, however, deletion or “scrubbing” of this metadata may have consequences for obvious reasons. Problems also arise when a document and accompanying metadata are disclosed with confidential information contained therein. Because of the scarcity of the law in this area, inadvertent disclosures of metadata are creating ethical questions affecting the disclosing attorney’s duty of confidentiality and the receiving attorney’s duty of zealous representation. While this is a broad topic raising many issues, the focus of this paper is directed to ethical implications generally.

Confidentiality disclaimers in e-mail communications are used every day by virtually all participants in the online commercial marketplace and throughout the legal profession. Although no attempt to enforce this boilerplate language is currently reported, they seem to be here to stay, like the disclaimers commonly displayed on fax coversheets. This paper will also discuss the efficacy of the disclaimer and ethical issues arising from the use and non-use of them.

Many lawyers know that electronic documents contain metadata. For the less technologically savvy attorney, metadata—also known as “data about data”—is embedded information in an electronic document.[1] From a more technical perspective, metadata is used by the system administration to manage the document’s storage, transfer and general handling.[2] As for spreadsheets (e.g., Microsoft Excel), these files contain cells that may contain mathematical formulas or calculations in metadata form that are not seen in a printed version but may have evidentiary value.[3] All of these files are subject to metadata inspection in an electronic copy.

An analog from the pre-electronic era is a library catalog card. The card typically contains data about the contents and location of a book in the library. Additionally, the card contains the name of the author, the title of the book, the publisher, the year of publication, the genre, the series it belongs to, and other identifiers such as ISBN numbers and Dewey Decimal system call numbers. Using metadata, a Microsoft Word or WordPerfect document is created, catalogued and retrievable in a fashion similar to the library catalog card. Metadata is immediately associated with a new document that designates the type of file, creation and edit dates, authorship and edit history.

The issue of metadata is important for attorneys because the disclosure of this information—either on purpose or not—implicates several ethical rules, as well as discovery rules. Obviously, a primary ethical rule implicated is the disclosing attorney’s duty of confidentiality under Rule 1.6 of the ABA’s Model Rules of Professional Conduct. When is metadata confidential? Metadata may also affect all attorneys’ duty to provide diligent representation to their clients under Rule 1.3. Does the interplay of these rules require the disclosing attorney to delete metadata before sending? When will deleting metadata be an offense subject to discipline or sanctions? Does Rule 1.3 oblige the receiving attorney to inspect metadata that is disclosed in discovery in order to zealously represent the client? Does Rule 4.4(b) require the receiving attorney to notify the disclosing attorney when confidential information contained in metadata is inadvertently disclosed?

The hi-tech landscape and the presence of metadata information may affect the attorney-client relationship, the work-product doctrine, and the attorney’s general duty of confidentiality. The imprudent attorney is in danger of waiving the first two of these doctrines by inadvertently disclosing metadata, and is in danger of violating ethical rules by breaching confidentiality in the process. The courts have adopted various approaches to the waiver of the attorney-client and work-product privileges.[4] Most courts take a reasonableness or balancing approach to determine whether a waiver applies to these privileges.[5]

Rule 1.6(a) mandates that “[a] lawyer shall not reveal information relating to the representation of a client” unless the client gives permission or other exceptions apply.[6] Comment 16 to Rule 1.6 states that, “[a] lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer.”[7] Also, Comment 17 states that “the lawyer must take reasonable precautions to prevent [transmitted communications] from coming into the hands of unintended recipients.”[8] How do these general rules apply to the lawyer in the ordinary course of business?

For example, Microsoft Word has features such as “Track Changes” and “Comments.” If a document is edited using “Track Changes,” and an electronic document is disclosed with the feature still activated, the receiving attorney may view every change that was made to the document.[9] Microsoft Word’s “Comments” feature allows for multiple parties (e.g., attorney and client) to add comments to a specific electronic document.[10] Like “Track Changes,” this feature, if not de-activated before disclosure, allows the receiving party to view any comments that were added—comments by the disclosing attorney’s client, for example.[11] Similar features to WordPerfect as well as other Microsoft applications, such as PowerPoint and Excel, also contain these metadata hazards.[12]

In addition to ethical problems arising from “Track Changes” and “Comments,” other seemingly innocent and efficient practices may be hazardous. For example, many users of electronic documents or templates will do a “save as” over a previous version, making the appropriate changes and deletions. This technique—dubbed “dupe-and-revise”—saves time but leaves intact original author information, print dates, and even hidden text.[13] This metadata information may contain Rule 1.6 information from current or previous clients.

As the only state bar to do so, the New York State Bar Association issued Ethics Opinion 782 in 2004 in order to clarify whether the inadvertent disclosure of metadata was an ethics violation under the state’s rules—specifically confidentiality rule DR 4-101(B), which is an analog of MRPC 1.6 (New York is one of a few states with rules based on the Model Code of Professional Responsibility). The committee concluded that “[l]awyers have a duty under DR 4-101 to use reasonable care when transmitting documents . . . to prevent the disclosure of metadata containing client confidences or secrets.”[14] Thus, the committee used a reasonableness standard and defined “reasonable care” as placing a duty on lawyers to “stay abreast of technological advances” and the potential risks involved.[15]

In a recent article in the Journal of the Kansas Bar Association, a state court judge observed that most courts require attorneys to use “reasonable efforts” to keep client information confidential.[16] The judge reasoned that the attorney who has not taken the time to learn about metadata and to take measures to prevent its disclosure has not made a “reasonable effort.”[17] Otherwise, the disclosing attorney risks violating the Model Rules in addition to waiving privilege of the disputed metadata information.[18]

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 measures taken to rectify the disclosure; and

5) whether the overriding interests of justice would or would not be served by relieving the party of its error.[20]

To determine whether the attorney-client privilege applied, the court focused on the first factor and addressed the “reasonableness of the precautions taken” to protect the disputed correspondence.[21] Similarly, the court determined that the key question with respect to the work-product privilege was whether the material was kept away from adversaries.[22] In the case of work-product, it is easy to see how a question of privilege may turn on the reasonableness of the measures taken to protect the work-product information. Thus, Maldonado outlines a helpful framework within which to analyze whether the inadvertent disclosure of metadata waives privilege, breaches the ethical duty of confidentiality, or both.

In summary, a plain reading of Rule 1.6 intuitively covers the hidden information contained in metadata. Indeed, Comment 17 requires the lawyer to take “reasonable precautions” to protect confidential information. The contemporary view outlined by Maldonado regarding the waiver of the attorney-client privilege reinforces the idea that “reasonableness” will be the focus of any inquiry into a breach of the attorney’s ethical duty of confidentiality when sensitive metadata is disclosed. Therefore, it is incumbent upon all practitioners to be aware of the hidden dangers posed by inadvertent metadata disclosure and to make reasonable efforts to protect the metadata information when appropriate.

Ethical Opinion No. 782 of the New York State Bar Association demonstrates that attorneys in New York have a duty to investigate, and, if necessary, prevent metadata from disclosure when it contains confidential information. Whether reasonableness requires the attorney to obtain scrubbing software—widely available on the market—remains an open question in virtually all jurisdictions.[23] In some cases, the deletion of metadata may be seen as comparable to shredding documents, especially if the metadata is permanently lost. In most cases, however, the use of this software will be the reasonable and safer alternative when the metadata is not under dispute or is the subject of privilege. The best alternative is for the litigants to be specific as to the form of production in their discovery conference, and to assert privilege early.

In response to discovery requests many attorneys routinely convert electronic documents into more limited electronic formats such as Adobe PDF “.pdf” or a similar file name extension called a TIFF image (“.tif”). This practice is a good way to guard against metadata inspection and confidentiality disclosures when there is no duty to preserve the documents in original format. Problems may arise in litigation, however, when the parties involved are not clear at the outset regarding the form of discovery documents.[24]

Rule 1.3 requires that “[a] lawyer shall act with reasonable diligence and promptness when representing a client.”[26] Comment 1 to the rule requires the lawyer to act with “zeal in advocacy” while at the same time allowing the lawyer “to exercise reasonable discretion in determining the means by which a matter should be pursued.”[27] It appears from a plain reading that an argument for the inspection and use of inadvertently disclosed metadata could be attempted under the breadth of this ethical rule. But the rule also cautions that a “lawyer is not bound . . . to press for every advantage that might be realized for a client.”[28]

Specific guidance for the attorney who receives email or electronic documents that may contain confidential embedded information can be found under Rule 4.4(b). Today, Rule 4.4(b) requires“[a] lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender.”[29] Comment 2 elaborates that Rule 4.4(b) is meant to address mistakenly sent documents, and that the word “‘document’ includes e-mail and other electronic modes of transmission subject to being read or put into readable form.”[30] When fax machines became more commonly used, the ethical question arose: what is an attorney’s ethical duty when a fax containing confidential information is sent to the attorney inadvertently? Most bar associations determined that this information could not be used.[31] Today, Rule 4.4(b) covers the inadvertently sent fax and Comment 2 to the rule encompasses the errant e-mail. Thus, Rule 4.4(b) could arguably apply to the inadvertent disclosure of metadata information contained in the e-mail and to any attached document.[32]

In 2005, the ABA issued Ethics Opinion No. 05-437, which states, “[a] lawyer who receives a document from opposing parties or their lawyers and knows or reasonably should know that the document was inadvertently sent should promptly notify the sender in order to permit the sender to take protective measures.”[33] The opinion clarifies 4.4(b) by addressing the source of the inadvertently sent document (“from opposing parties or their lawyers”) and also adds language suggesting that the inadvertently sent document may be privileged (“to permit the sender to take protective measures”).[34] Thus, metadata information appeared to fall within the scope of 4.4(b) and opinion 05-437.

On August 5, 2006, however, the ABA Standing Committee on Ethics and Professional Responsibility issued Opinion 06-442, which states that a lawyer is generally permitted to review and use metadata contained in e-mail and other electronic documents.[35] The Committee noted that the Model Rules of Professional Conduct do not contain any specific prohibition against such use of embedded information. The Committee concluded that Rule 4.4(b) relating to a lawyer’s receipt of inadvertent information was the most applicable rule concerning metadata.[36] If a transmission of metadata were to be inadvertent, under Rule 4.4(b), the only obligation that the receiving lawyer has is to promptly notify the sender. Comment three to Model Rule 4.4 indicates that the receiving lawyer may, but is not required to, return the document unread. The Committee made a point not to characterize transmission of metadata as inadvertent or advertent, but observed that the subject may be fact specific.[37] Opinion 06-442 suggests that metadata information will fall within the scope of 4.4(b) only if it is inadvertently sent.

New York, Maryland, and Florida are the only State Bar Associations to have addressed the inadvertent disclosure of metadata. The New York ethics committee addressed the ethical obligations of the receiving attorney regarding metadata in Ethical Opinion No. 749 by answering in the negative the question: “[m]ay a lawyer ethically use available technology to surreptitiously examine and trace e-mail and other electronic documents?”[38] The committee found that the “use of technology to surreptitiously obtain information that may be protected by the attorney-client privilege, the work-product doctrine or that may otherwise constitute a ‘secret’ of another lawyer’s client would violate the letter and spirit of [the rules].”[39] Unlike the inadvertently sent fax, the New York Bar found that the disclosure of metadata was not inadvertent or careless, but that it was more accurately described as “unwilling” or “unknowing.”[40] The committee’s distinction between inadvertent or careless disclosures on the one hand, and unwilling or unknowing disclosures on the other hand, foreclosed any need to weigh the balance between the policy interest of encouraging more careful conduct against the policy interest in favor of confidentiality.[41] Therefore, the committee focused on the receiving attorney’s conduct, and it concluded that the sending attorney’s carelessness did not translate into a breach of confidentiality.[42] A controversial precedent is raised by the New York opinion. Despite the disclosing attorney being in the best position to prevent ethical problems for all parties involved, the receiving attorney is the party subject to discipline.[43]

The issue of metadata mining was brought to the attention of the Florida Bar in 2005.[44] A distinction was sought between the potentially unethical scenario of mining metadata as a matter of course—when opposing counsel sends a letter, for example—and conducting metadata mining for forensic e-discovery purposes. The Florida Bar issued, on September 15, 2006, Advisory Opinion No. 06-2, which states in part that:

It is the recipient lawyer’s concomitant obligation, upon receiving an electronic communication or document from another lawyer, not to try to obtain from metadata information relating to the representation of the sender’s client where the recipient knows or should know that the information is not intended for the recipient. Any such metadata is to be considered by the receiving lawyer as confidential information, which the sending lawyer did not intend to transmit.[45]

The Committee distinguished the metadata concerns it addressed by stating that its opinion did not address uses of metadata that was discoverable under applicable rules or that was admissible in a trial or arbitration.”[46] Thus, the state is recognizing a distinction of contexts for the ethical and unethical uses of metadata under their rules. The Maryland Opinion, in contrast, concluded that the Maryland Rules of Professional Conduct allow the recipient lawyer to review and make use of metadata. It further states that the receiving attorney has no obligation to notify opposing counsel that there may have been an inadvertent transmittal of it.[47] The Opinion does state that the receiving lawyer can, and probably should, communicate with his or her client concerning whether to notify the sending attorney and to take such action as they believe is appropriate.[48] Somewhere we need to note impact of new fed rules. Maybe footnote???

The ABA Formal Opinion 06-442 also commented on a receiving lawyer’s search for metadata. The Committee declined to agree with the finding of New York and Florida that the practice is impermissible.[49] The Committee reiterated Rule 4.4(b)’s sole requirement that the receiving attorney provide notice to the sender, of the receipt of inadvertently sent information. The Committee concluded that this was evidence of the intention to set no other restrictions on the receiving attorney’s conduct.[50]

The ABA Opinion went on to observe that counsel sending or producing electronic documents may be able to limit the likelihood of transmitting metadata in electronic documents. Computer users can avoid creating some kinds of metadata by choosing not to use redlining functions of a word processing program or not to embed comments into a document. Computer users can also eliminate or scrub some kinds of embedded information in an electronic document before sending it.[51] These comments seem to place the responsibility for confidentiality on the sending attorney, rather than the attorney who may receive electronic documents containing confidential metadata.

These state bar association opinions, as well as ABA Formal Opinion 06-442, coupled with Rule 4.4(b), demonstrate that the receiving attorney enters into uncharted territory when the attorney receives an electronic document, discovers confidential information contained in its metadata, and uses the information. Obviously opinions on a lawyer’s obligations with respect to confidentiality and metadata differ and this continues to be a developing area of the law.

When e-mail communications began to gain prominence in the early to mid-nineties, a few state bars issued ethics opinions requiring encryption or advanced permission from the client, believing that e-mail use violated Rule 1.6.[53] A general consensus that e-mail use was an acceptable form of communication began to materialize, however, when the technology became better understood by the state bar associations.[54] The ABA issued an ethics opinion in 1999 concluding that a lawyer may transmit unencrypted e-mails relating to the representation of a client without violating Rule 1.6(a), because this mode of transmission affords a “reasonable expectation of privacy.”[55]

The ABA committee analogized that the threat of intercepted e-mail communications posed no greater threat than the interception of telephone communications or faxes.[56] Furthermore, the committee noted that the Electronic Communications Privacy Act amended federal wiretapping laws to include “electronic communications” thereby making e-mail interception illegal.[57] The committee added, however, that the attorney should consult the client pursuant to Rule 1.2(a) regarding the proper mode for transmitting highly sensitive information.[58] The ABA opinion is codified into Comment 17 of Rule 1.6, stating that the duty of confidentiality does not require special security measures—i.e., encryption—unless the sensitivity of the subject matter suggests otherwise.[59] In such a situation, “reasonableness” factors are listed to measure the attorney’s objective expectation of confidentiality regarding the means of communication at issue.[60] Moreover, Comment 17 suggests that the client may give informed consent for any means of communication that would otherwise be prohibited by the rule.[61] Thus, the e-mail encryption debate seems to be well settled at the moment.

What about confidentiality statements in e-mails? Just like the disclaimers commonly seen on fax coversheets, virtually all e-mails sent throughout the commercial marketplace and throughout the legal profession contain these disclaimers, usually at the end of the e-mail. Many law firms have policies in place that require the automatic generation of a disclaimer in every new e-mail. Does the use of a disclaimer serve any purpose or is it merely useless boilerplate?

There appears to be no case law on enforcement of an e-mail or fax disclaimer. A recent article noted the same absence of guidance from the courts on the efficacy of these disclaimers.[62] As a practical matter, these disclaimers are merely boilerplate, but, at a minimum, they do serve notice to the recipient that the e-mail is intended to be confidential, which may be enough for a court.

In a 2006 article, seven lawyers from various sized markets participated in an online roundtable discussion about e-mail use.[63] The moderator asked the panel whether e-mail disclaimers are worthwhile and the general consensus from the panel was that the disclaimers are meaningless.[64] Despite the panel’s make-up being predominately solo practitioners, many general points were made about the use of disclaimers.[65] One solo practitioner stated that he did not “waste the time or [print] toner” on them, believing that the various bar rules regarding inadvertent disclosure seem to provide sufficient protection.[66] He also suggested that they were “clutter” and asked, “[w]hen’s the last time anyone read the disclosure on the parking garage stub?”[67] Another solo practitioner observed that certain disclaimers he had seen read like a public relations effort, quipping, “[s]ee how careful I am, client?”[68] A third panelist reasoned that the real question is whether the recipient is going to use the information.[69] He added that the practical danger is not the risk of sending an e-mail to a recipient who is totally unconnected to the matter, but sending it to an opposing party.[70] This panelist suggested disabling any auto-complete feature that may be activated (in the “To” field of the e-mail), but also suggested the more common-sense practice is to always double-check that the intended recipient is displayed correctly.[71]

The only law firm partner to participate in the roundtable discussion agreed with the rest of the panel but added that lawyers who give advice on federal tax issues may be required to give certain regulatory disclaimers.[72] The last panelist to comment also agreed with the panel about the meaninglessness of the disclaimer, adding that if a lawyer has to rely on them, then “the damage has already been done.”[73] He also stated that the only reason he used the e-mail disclaimer was because his professional liability carrier recommended it.[74]

A British lawyer cautioned that, from a basic contract law perspective, the unilateral disclaimers are legally ineffective because the recipient does not have a chance to agree to the terms.[75] The British lawyer reasoned, however, that the efficacy of a disclaimer might be enhanced if it appears at the top of the e-mail, rather than the bottom, because the e-mail comes to the attention to the reader immediately.[76] This enables the sender to argue that the recipient had an opportunity to make an informed decision whether to proceed in reading the contents.[77] Furthermore, if the recipient has received previous e-mails from the sender, then it would be reasonable to conclude that the recipient is well aware of the standard disclaimer and should refuse to continue the exchange if the recipient suddenly becomes unwilling to accept the disclaimer’s terms.[78]

Similar precautions have been suggested which include, not only a warning paragraph at the top of the e-mail for the same reasons stated above, but also differentiating between confidential communications and work-product communications.[79] In other words, a different warning notice may better protect a work-product e-mail to that effect.[80] Furthermore, the author of this article suggested that standard confidentiality disclaimers lose their impact if the disclaimers are used on every e-mail communication, be it “social, commercial, or frivolous.”[81]

One of the panelists to the roundtable discussed above believed that the various bar rules already protect inadvertently sent e-mails. Intuitively, the interplay of Rule 4.4(b) and ABA Formal Opinion 437 require the lawyer who receives from opposing parties an inadvertently sent “document”—a definition which includes e-mail and other electronic modes of transmission—to promptly notify the sender. Thus, the use or non-use of a confidentiality disclaimer should not affect this duty of the recipient lawyer.

The best practice, however, may be to maintain a well-drafted disclaimer just to be on the safe side. One can easily see a disciplinary proceeding regarding the lawyer’s duty to maintain confidentiality over an errant e-mail turning on whether the lawyer took “reasonable precautions” to protect the communication under Comment 17 to Rule 1.6. There can be little doubt that e-mail disclaimers, whether legally enforceable or not, will add extra protection for the sending attorney. Without encryption, the disclaimer is best seen as a “final precaution” on top of the common-sense practice of checking the recipient’s address and carefully reviewing the e-mail’s content.[82] Also, the attorney may want to obtain informed consent from the client about e-mail use, although ongoing consent to e-mail communications over long periods of time may be insufficient.[83]

The duty to protect attorney-client confidences almost certainly extends to the electronic netherworld of metadata. If it does not today, it almost assuredly will tomorrow, as a format subject to protection by “reasonable precautions” under Rule 1.6. The receiving attorney, too, may have a duty to notify the sender of an electronic document that contains confidential information in metadata form under Rule 4.4(b). If more states follow New York’s lead, the receiving attorney will officially have such a duty, not only to notify the sender but also to refrain from mining the metadata information, if any.

It appears that no lawyer has seriously attempted to enforce a confidentiality disclaimer in an e-mail—at least these attempts are not currently reported. The disclaimers seem to be important as they announce that the sender has the intention to maintain confidentiality under Rule 1.6, if nothing else. There may be a danger of drowning the recipient in a sea of standard disclaimers if the same one is used for all communications, leaving room for the recipient to argue that the disclaimer is meaningless. As for the receiving attorney, a literal reading of Rules 4.4(b) and ABA Formal Opinion No. 437 clearly encompasses the errant e-mail. In such a case, the receiving attorney has a duty to notify the sender regardless of a disclaimer. Once this duty to notify is completed, then the court may address whether the privileged information contained in the e-mail is subject to a waiver of privilege.

[1] The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Production 58 (2005), available at http://www.thesedonaconference.org/publications_html. The Sedona Conference filled the gap with e-discovery principles that have been followed by some courts. The Sedona Conference is a non-profit legal research and education institute that holds conferences in the areas of antitrust, complex litigation, and intellectual property rights. Each conference is comprised of jurists, practitioners and academics, who prepare materials and lead discussions. The conference’s Working Groups Series completed a conference on e-discovery in 2005, and created 14 principles to guide parties in electronic document production.

[19] Maldonado, 225 F.R.D. at 130–31. The plaintiff, a probation officer, filed a charge against his employer, The State of New Jersey, and his superiors for employment discrimination and retaliation. The privilege issue centered on a letter drafted by the defendant-supervisors for delivery to their attorney. The letter contained witness information and theories about the plaintiff’s various motives. A copy of the letter landed in the plaintiff’s mailbox, and he delivered it to his attorney.

[24] See, e.g., Hagenbuch v. 3B6 Sistemi Elettronici Industriali, 2006 WL 665005, at *2 (N.D. Ill. Mar. 8, 2006) (holding that defendant did not comply with discovery order that was unspecific as to form of production by converting documents from original format to TIFF and PDF images); In re Priceline.com Inc. Securities Litigation, 233 F.R.D. 88. 89 (D. Conn. 2005) (holding that TIFF and PDF images of the documents was the best form of production because these unalterable images would prevent inadvertent alterations and accusations of alteration between the parties).

[52] Professor David Hricik with Mercer University School of Law maintains an exhaustive website on “e-ethics” which contains a multitude of articles and links to various state bar associations’ ethics committees, court and government links, and other sources pertaining primarily to technology issues facing attorneys. Links to the various state bar associations that have addressed metadata, e-mail, and other hi-tech issues are located here. See http://www.hricik.com/business.html.

[54] See, e.g., State Bar Ass’n of North Dakota Ethics Comm. Op. No. 97-09 (Sept. 4, 1997); Illinois State Bar Ass’n Advisory Op. on Prof’l Conduct No. 96-10 (May 16, 1997); Arizona State Bar Ass’n Formal Op. No. 97-04 (Apr. 4, 1997); South Carolina Bar Ethics Advisory Comm. Op. No. 97-08 (June 1997) (overruling South Carolina Bar Ethics Advisory Comm. Op. 94-27); Vermont Advisory Ethics Op. No. 97-5 (1997).

[58] Id. The Iowa Bar struck a balance between the original strict prohibition of e-mail communication and the ABA opinion after initially requiring a written authorization from the client to use e-mail. The state amended its previous opinion regarding e-mail confidentiality to allow general unencrypted e-mail communication for the representation of a client but still requiring written acknowledgment by the client when sensitive material is involved. Iowa Sup. Ct. Bd. of Prof’l Ethics Op. No. 97-01 (1997).