Sample Form: E-Mail Consent

As attorneys, we are under an ethical obligation to maintain the confidences and secrets of our clients. We may not disclose these to any third party without consent and must take reasonable steps to ensure against the inadvertent disclosure of confidential information. The sanctity of the attorney-client relationship is recognized and protected by the courts.

At (Name of Firm) we have policies and procedures in place to protect the confidentiality of sensitive communications with our clients. Most forms of communications in which we engage are secure and considered so by the courts. Letters sent through the U.S. mail, by overnight courier and fax are secure and protected even if inadvertently disclosed or tampered with. Telephone calls over the wired network are generally protected as well.

The law has not yet caught up with the rapid growth of e-mail as a convenient and inexpensive means of communication. All attorneys at [Name of Firm] now have e-mail capability available to them. Our dilemma is that the District of Columbia, like many other jurisdictions, has not provided any guidance governing the use of e-mail in attorney-client communications.

There is the possibility that e-mail can be intercepted by unauthorized parties; although, due to the nature of the technology and volume of e-mail, it is no easy task. Moreover, interception of e-mail is a felony under the federal Electronic Communications Privacy Act, which also contains a provision that if an otherwise privileged communication is intercepted in violation of the Act, the privilege will remain intact. This provision has not been tested with regard to e-mail.

The few states that have addressed the ethical issues surrounding the use of e-mail by attorneys have determined that if an attorney advises a client of the risk of interception of e-mail and the client consents to the use of e-mail for privileged communications, the attorney has then fulfilled the ethical obligation.

If you would like to utilize e-mail as a means of communication in matters we handle for you, kindly provide us with your consent below and return this to us. If, at any time, either you or we feel that a particular communication is too sensitive, alternate means will be used. You may, of course, withdraw this consent at any time.

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This sample e-mail consent form was provided by Neal J. Friedman of Pepper & Corazzini LLP. For more information, contact Neal Friedman at 202-296-0600 or njf@commlaw.com.