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.