by Richard Brust
                                                                     ABA Journal

That's what an ABA committee has concluded in issuing its opinion that lawyers don't violate ethics rules by sending client information in unencrypted e-mail provided they take reasonable precautions to guard against disclosure.

The ABA Standing Committee on Ethics and Professional Responsibility says e-mail poses Ano greater risk of interception or disclosure" than traditional methods of communication, such as phone calls or letters, which are accorded a reasonable expectation of privacy. However, the committee

cautions lawyers to check with their clients about highly sensitive information before hitting the send key.

The analysis is contained in Formal Opinion 99-413 issued in March. The headnote may be accessed on the Internet, at www.abanet.org/cpr/ ethicopinions.html.

The opinion specifically addresses Model Rule of Professional Conduct 1.6(a), which prohibits revealing information relating to client representation. Since the "risk of unauthorized interception and disclosure exists in every medium," the opinion says, lawyers need only take reasonable steps when sending unencrypted e-mail.

Although the opinion doesn't detail those precautions, it analyzes other methods of communication as comparative guideposts. For example, although letters are sealed and "arguably more secure than e-mail," they may be lost or stolen. And just as postal services reserve the right to inspect contents of mail, so do online or Internet service providers.

In addition, says the opinion, conversations on telephones --landline, cordless and cellular can be overheard, and fax messages can be misdelivered.

The opinion also compares the variety of e-mail services, including direct e-mail, through which the lawyer and client communicate by dial modem; private systems, such as internal corporate e-mail and extranets; and online and Internet service providers.

The opinion reflects the trend among the majority of state bar associations, which have similar rules on e-mail transmissions.

But not all states concur. Pennsylvania and Arizona expressly caution lawyers to consult with clients before sending unencrypted e-mail. North Carolina advises lawyers against using e-mail, while Iowa prohibits using e-mail without client consent, encryption or a similar security system.

Iowa State Bar Association President David Beckman says he favors the loosening of restrictions on e-mail, and has written on the subject in the state bar's publication. But he says he doesn't expect the state to change its rules any time soon.

"We need to let attorneys decide when it's appropriate to send e-mail," says Beckman, a technology expert and co-author of a regular ABA Journal column on technology. AThe rhythm of communication with a client can be crucial. I want to make the judgment, not some regulating body."