Is Your Free E-mail an Ethics Violation?

One Lawyerist reader recently wrote in asking about the ethical implications of free e-mail providers like Yahoo! and Gmail. The issue with these services is that the e-mail providers use computers to scan the e-mails and provide contextual advertisements based on the e-mail content. Does an attorney run the risk of violating the duty of confidentiality by using such a service?

According to 3 Geeks and a Law Blog, the answer is clearly “yes.”


Google’s Terms of Service (ToS) state:

By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive licence to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services.

Toby Brown of 3 Geeks and  Law Blog summarizes that the “legal profession holds itself out as having higher duties of care when it comes to securing client information. I suggest that using free email services with a TOS like Googles’ runs counter to this professional responsibility.”

I, along with the New York State Bar Association’s Committee on Professional Ethics (“the Committee”), disagree. In Opinion 820, the Committee held that a lawyer “may use an e-mail service provider that conducts computer scans of e-mails to generate computer advertising, where the e-mails are not reviewed by or provided to human beings other than the sender and recipient.”

At first glance, the Terms of Service may look like a death-sentence for an attorney’s duty of confidentiality. However, in the additional terms of the privacy policy, Google explains:

In personal email communications, there has always been, and always should be, an expectation of privacy between the sender and the intended recipients of a message, enabling open communication with friends, colleagues, family, and others.

Privacy is compromised, however, if personal information or private email content is shared with parties other than the sender and intended recipients without their consent. This is not the case when people use Gmail. Google does not share or reveal email content or personal information with third parties. Email messages remain strictly between the sender and intended recipients, even when only one of the parties is a Gmail user.

That emphasis is Google’s. They go on to further explain that no human ever sees your e-mail except when a user requests it, a court orders it, or Google reasonably believe it’s necessary in order to protect the rights, property or safety of Google, its users and the public.

This is a sensitive issue for attorneys. As a profession, our duty of confidentiality is one of our most valuable services. If we violate that duty, we do not only breach the rules of professional responsibility; we do a disservice to the profession. That is why Opinion 820 is so important. It looks at the issues and concludes that using a free e-mail is a viable option. Not every solo-practitioner can afford an Exchange server or other premium e-mail services, and so these free services are an attractive option.

That being said, users must still use caution when choosing an e-mail provider. If Google’s ToS were the end of the word on the matter of privacy, I would be hesitant to use their services for a law firm. Other providers may not have additional clarifications on their privacy policy.

As the Committee explains:

A lawyer must exercise due care in selecting an e-mail service provider to ensure that its policies and stated practices protect client confidentiality.

(photo: http://www.flickr.com/photos/klabusta/346519139/)

  • http://ethicsmaven.com/ Eric Cooperstein

    Josh, the 3 Geeks and a Law Blog link you provided was to a September 2009 post. That post also discusses and links to a NJ district court decision on e-mail privacy that was reversed by the NJ Court of Appeals in 2009 and the appellate decision affirmed by the NJ Supreme Court in 2010. Although Opinion 820 is from 2008, I agree the analysis is still valid. I just wouldn’t want readers to be confused by linking only to the lower court opinion in NJ, which upheld the privilege for e-mails between a corporate manager and her outside counsel sent through her web-based e-mail account.

    • http://joshcamson.com Josh Camson

      Thanks Eric. For my upcoming post on the ethics of cloud storage, I will be taking a much more in-depth look at various state ethics opinions.

  • Jay

    Why do people use Gmail for professional email anyways? If you have a hosted website, which I assume all attorneys do, your website should come with email services that you can access via any number of email programs, including online. I do use Gmail for personal activity though.

    • http://lawyerist.com/author/samglover/ Sam Glover

      Because Gmail is way more awesome than “any number of email programs” as well as all other webmail options.

      • http://ethicsmaven.com/ Eric Cooperstein

        That may be true but the real reason is that there are a significant number of attorneys out there for whom the thought of getting their own domain name and a hosted website is like suggesting that they go hang gliding in a war zone. Signing up for a web-based e-mail account is something that they can easily handle without feeling like they have to “become a techie.” Some people also think that “e-mail is e-mail” so why bother with anything more complicated than signing up for gmail. By the way, this is not limited to older attorneys. There are young attorneys who are fast texters and into Facebook but have never educated themselves on how to obtain a domain name and don’t have the money to pay someone else to do it.

    • http://joshcamson.com Josh Camson

      Also, some attorneys (myself included) use Google Apps for Your Domain. That gives people the best of both worlds. You get your professional domain name and almost all of the Google features. The concerns I discuss in the post would be applicable in that situation as well.

  • http://www.attorneysync.com Gyi Tsakalakis

    “hang gliding in a war zone” Like. I wish lawyerist was using disqus…

  • Jay

    Maybe I’m not using Gmail correctly, or completely. I don’t see anything particularly awesome or unique about it. In fact I rather detest the constant ads and the somewhat limited ability to compartmentalize emails. Outlook by itself is not great either, but there are many add-ons (for a price) that can make Outlook great and really make contact management a breeze and value.

    • http://lawyerist.com/author/samglover/ Sam Glover

      Getting rid of the ads is easy. Just use something like Minimalist for Gmail.

      I’m not sure what you mean by a limited ability to compartmentalize emails. Gmail’s labels are far more versatile than anything in Outlook.

      That said, if you like Outlook, use it. Just connect it to a Google Apps account so you aren’t limited to Outlook if you want to check your mail.

  • Jay

    See, I knew there was something on Gmail I was missing. Thanks for the heads up. I’ll give it a try.

  • http://www.toptorontolawyers.ca Jim

    Kudos to you. I bet many have never considered the important issues you raised regarding confidentiality and privacy when using the services of Google and other Internet / Search services.

    In the case of Google, despite the worrying, all encompassing TOS, I genuinely feel their services come from a position of building a better web and surfing experience.

    Certainly food for thought.

    • http://lawyerist.com/author/joshcamson/ Josh Camson

      Thanks Jim. I agree completely.

  • KM

    Josh, I disagree with you about use of paid Google Apps raising the same issues as use of a free Gmail account. The paid Google Apps for Business Terms of Service and Privacy Policy are not the same as the terms for regular, free Gmail, and I do not believe they raise the same privacy/confidentiality concerns as the terms for free Google products. For one, there is a confidentiality agreement (Item 8 at http://www.google.com/apps/intl/en/terms/standard_terms.html), and if you are following best practices, anything privileged or confidential should be so labeled. For another, if you pay for Google Apps, the company does not even auto-scan email for advertising purposes because you have paid to not have any ads displayed (item 1.4 at http://www.google.com/apps/intl/en/terms/premier_terms.html).

    Jay, try checking out the Labs link at the top-right (it may say Labs under a drop-down from a little gear icon, or it may appear as an icon of a green flask)–it offers a lot of options for more compartmentalization of emails, including nested labels and a “priority inbox.” I also make extensive use of filters, sending all advertising materials (bar association newsletters, mailing lists, etc.), straight to archive with an appropriate label so that it skips my inbox and I only get notifications of emails I want to see, such as those from friends and family. When I have a little time, I check all labels that have new email in them so I don’t miss newsletters. It’s a very helpful way to compartmentalize my day, because I don’t feel a need to check every piece of email as it comes in.

  • Kurt Schoettler

    Actually, I would think the bigger ethics issue here is not what service they use but the strength of their password. I would argue that using nothing more than your pet’s (kid’s, spouse’s, whatever) name as your password is a far bigger risk to your clients confidentiality than the use of the free mail service itself…never mind putting that password on a sticky note on your computer/desk.

    • http://lawyerist.com/author/samglover/ Sam Glover

      I definitely agree with this. We’ve hit on password security before, but it is worth repeating.