Lawyers should use caution when communicating about confidential matters on portable telephones. [ER 1.6]
An inquiring lawyer requests an opinion on the ethical propriety of using a cellular or cordless telephone to communicate with clients and opposing counsel.
Is it ethically proper for a lawyer to use a cellular or cordless telephone to communicate with clients and opposing counsel?
Relevant Ethical Rules
ER 1.3 Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
ER 1.4 Communication
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
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ER 1.6 Confidentiality of Information
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c) and (d) or ER 3.3(a)(2).
Significant advances in technology have led to the widespread use of cellular and cordless telephones by the general public, including lawyers and their clients. At the same time, recent technological advances also permit third parties to eavesdrop on portable telephone conversations. Indeed, in some communities an underground market exists wherein recordings of such intercepted conversations can be purchased by interested parties. This unique susceptibility to unauthorized interception of conversations raises important ethical and evidentiary issues. This opinion will address the ethical concerns.
ER 1.6 restricts the lawyer's disclosure of information that he or she has received from or about the lawyer's client. As the Comment to ER 1.6 explains, "[t]he confidentiality rule applies not merely to matters communicated in confidence but also to all information relating to the representation, whatever the source." This "fundamental principle" in the client-lawyer relationship encourages the client to seek early legal assistance and communicate candidly with counsel. Id. By holding client confidences inviolate, a lawyer also "facilitates the full development of facts essential to proper representation of the client . . . ." Id.
With very narrow exceptions, the lawyer must not reveal client information without the client's consent. The lawyer is obliged to take "reasonable steps to secure the information against misuse or inappropriate disclosure," including steps necessary to assure that "the lawyer and the lawyer's associates or agents acquire, store, retrieve, and transmit confidential information of the lawyer's clients under systems and controls that maintain confidentiality." Restatement of the Law Governing Lawyers § 111, cmt. c (Tent. Draft No. 3, 1990).
The Committee is unaware of any cases discussing whether the unauthorized interception of a portable telephone communication between an attorney and client constitutes a waiver of the attorney-client privilege. The only cases addressing the expectation of privacy or confidentiality in such communications concern whether their interception violates state or federal wiretapping statutes or the Fourth Amendment's prohibition on unreasonable searches and seizures.
In Salmon v. State, 206 Ga. App. 469, 426 S.E.2d 160 (1992), the Georgia Court of Appeals held that the interception and recording of a cellular telephone conversation did not violate the state wiretapping statute. The Court stated "[U]nlike line telephone conversations, cellular telephone communications are not private . . . .[C]ellular telephones transmit FM radio waves for anyone to hear. Thus, cellular telephone users have no justified expectation of privacy."
Id. at 470, 426 S.E.2d at 161. Other jurisdictions have reached the same conclusion with respect to cordless telephones. See Tyler v. Berodt, 877 F.2d 705, 706-07 (8th Cir. 1989)(there can be no reasonable expectation of privacy in cordless telephone transmissions in view of the ease with which they can be monitored), cert. denied, 493 U.S. 1022, 110 S. Ct. 723, 107 L. Ed. 2d 743 (1990); State v. Smith, 149 Wis.2d 89, 95, 438 N.W.2d 571, 573 (1989) (same); State v. Delaurier, 488 A.2d 688, 694 (R.I. 1985) (same); State v. Howard, 235 Kan. 236, 249, 679 P.2d 197, 206 (1984) (same).
A recent Fifth Circuit decision provides an interesting contrast to the Salmon line of cases. United States v. Smith, 978 F.2d 171 (5th Cir. 1992), cert. denied, U.S. , 113 S. Ct. 1620, 123 L. Ed. 2d 179 (1993). In Smith, an intercepted cordless telephone conversation became evidence in a drug trafficking case. Id. at 173. The Fifth Circuit discussed the expectation of privacy under the wiretap provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2521, and under the Fourth Amendment. Id.
The Fifth Circuit noted that the expectation of privacy issued under Title III had been mooted by a 1986 amendment specifically exempting the unauthorized interception of portable telephone conversations from the Act's provisions. Id. at 176. Nevertheless, the Fifth Circuit held that the expectation of privacy was still relevant to the Fourth Amendment analysis. Id. Recent advances enable cordless telephone users to prevent unauthorized interception. Id. at 179. For example, cordless telephones no longer are pre-set to one frequency, and most cordless telephones sold today can monitor all available frequencies and select one that is unused. Id. This feature greatly reduces the chance that a cordless telephone will pick up conversations from other cordless telephones. Id. Moreover, some cordless telephone models scramble the radio signal so that even radio scanners cannot intercept the communication. Id.
Accordingly, the Fifth Circuit held that in some circumstances a defendant reasonably may believe that his or her portable telephone conversation was private. Id. at 180. In that event, the Fourth Amendment's prohibition of unreasonable searches could apply. Id.
The Arizona Court of Appeals adopted the Fifth Circuit's analysis in State v. Duran, 901 P.2d 1197 (Ariz. Ct. App. 1995). There, the Court considered whether the trial court erroneously denied the defendant's motion to suppress marijuana and drug paraphernalia obtained through a search warrant based upon alleged violations of wiretapping statutes and her constitutional rights. Id. at 1197. The search occurred after an off-duty sheriff's deputy used a radio scanner to intercept the defendant's cordless telephone call. Id. at 1197-98.
In affirming the trial court, the Court of Appeals held that the deputy's warrantless interception did not violate state or federal wiretapping laws. Id. at 1198-99. With respect to defendant's claims under the Fourth Amendment, the appellate court stated that "the issue is not whether it is conceivable that someone could eavesdrop on a conversation but whether it is reasonable to expect privacy." Id. at 1199 (citing United States v. Smith, 978 F.2d at 179) (emphasis in original). In the absence of any testimony that defendant's telephone was designed to prevent interception or to scramble the signal, the trial court did not abuse its discretion by refusing to suppress the evidence. Id. at 1199.
Duran holds that the parties to a portable telephone conversation may not have a reasonable expectation of privacy for Fourth Amendment purposes. Nevertheless, attorneys and clients using these telephones may intend their communications to be confidential. Such communications consequently are protected under ER 1.6, and remains so whether intercepted, overheard, or tapped. Indeed, it is arguable that the mere use of portable telephones will not prevent the application of the attorney-client privilege, which is a legal issue beyond the scope of this opinion. See Cal. Evid. Code § 952 (1995). A contrary position would result in unintended privilege waivers, and would inhibit attorney's efforts to advise clients with reasonable promptness and diligence.
As to the possibility of violating ER 1.6, the Massachusetts Bar Association Ethics Committee believes that lawyers should not discuss confidential information with clients by cellular phone, without first obtaining the informed consent of the Client. Massachusetts Opinion 94-5 (March 22, 1994).
Portable telephone users should exercise caution when communicating about confidential matters. The interception of such information may have harmful consequences for the client. Just as a lawyer must not discuss sensitive matters in a crowded restaurant, so he or she must refrain from these discussions when using a portable telephone. However, the time has not yet come when a lawyer's mere use of a cellular phone to communicate with the client -- without resort to a scrambling device or exculpatory language at the call's beginning -- constitutes an ethical breach.
When the lawyer engages in conversations with opposing counsel, the analysis of a lawyer's ethical duties differs somewhat, though the result remains the same. Presumably, the lawyer will not disclose client confidences during such conversations, other than those impliedly authorized to carry out the representation. In that event, the lawyer would not violate ER 1.6(a) by communicating with opposing counsel over a portable telephone. Nevertheless, there is a genuine risk that a third party may intercept harmful information. Consequently, the lawyer should exercise caution when discussing client matters with opposing counsel on any portable telephone.