In the mid-1990s, email was a frowned upon by bar ethics committees across the country. So not surprisingly, as part of a knee-jerk reaction to this emerging new technology, a number of bar association ethics committees required that attorneys obtain client consent before email could be used (see, for eg., South Carolina (Opinion 94-27 1995) and Iowa (Iowa Ethics Opinion 96-1 1996)).
But then, in 1999, the American Bar Association reversed that trend , largely due to the overwhelming societal acceptance of email. With the issuance of ABA Formal Opinion No. 99-413 the ABA ushered in a new era for lawyers—one where email was an accepted method of communication. In that opinion, the committee determined that client consent regarding the use of email was unnecessary. By doing so, the committee implicitly condoned attorneys’ use of unencrypted electronic communications with their clients.
Since then, email has become one of the primary ways in which we communicate. In fact, some would even argue that we’ve reached the point where email has become outdated and that other, more secure forms of communication such as encrypted communication via cloud computing platforms, is the method of the future.
Even so, because of the prevalence of email, in 2011, South Carolina—one of the states that forbade attorneys from using email to communicate with their clients in 1995— revised its rules to require that attorneys include an email address as part of their contact information when registering with the bar. As explained in the opinion: “In relevant part, Rule 410(g) provides that "[p]ersons admitted to the practice of law in South Carolina shall have a continuing duty to verify and update their information in the AIS, and must ensure that the AIS information is current and accurate at all times. At a minimum, the contact information must include a mailing address, an e-mail address and a telephone number." Rule 410(e), SCACR, states that the mailing and email addresses in AIS shall be used for notifying and serving the bar member.”
And then, earlier this month, the Supreme Court of South Carolina issued an Order in Appellate Case No. 2012-213164 in which it suspended a South Carolina attorney’s license to practice law because she had failed to maintain and monitor an operational email account. The Court explained the rationale behind its decision: “Although respondent may consider herself retired from the practice of law since she has not represented clients in many years, she is nevertheless classified as a regular member of the South Carolina Bar and, therefore, pursuant to Rule 410(g), SCACR, required to provide a valid email address. Even if she were eligible to elect to be a retired member of the Bar,4 she would still be required to maintain an email address pursuant to Rule 410(g), SCACR.”
The issuance of this Order is just one more example of how far we’ve come in such a short time. For now, at least, my faith in our profession and its ability to change with the times has been restored. But change rarely occurs on a grand scale, so who knows what type of knee jerk reaction to less accepted technologies we might see in the near future. Tune in tomorrow and see.
Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at email@example.com.