Failure to Encrypt E-Mail Jeopardizes The Privilege and Work-Product Doctrine Protect or Perish

Journal Issue

Feb 2006

Column Name

Beyond the Quill

Citation

ABI Journal, Vol. XXV, No. 1, p. 44, February 2006

Topic Tags

Ethics

Practice and Procedure

Telecom/Tech

Journal HTML Content

This article will rivet home, regardless of what
has been told to attorneys and professionals in the past that makes
them feel warm and cozy with the concept that encryption of e-mail is
not necessary because e-mail carries with it the reasonable
expectation of privacy, that the known technological vulnerabilities
of unencrypted e-mail make this presumption an old wives’ tale at
best. In a very practical sense, we are in business, and
clients should reasonably expect that the professionals know how to
protect the privilege and work product before the courts determine it
is too late after the damage has been done.2
That being said, e-mail is the common denominator connecting bankruptcy
professionals and clients, and once e-mail and related attachments are
sent out, you just do not know where they may end up. Prof.
Arthur R. Miller of Harvard was quoted as saying: “Today, as
computers document almost every aspect of our clients’
professional and personal lives, electronic discovery becomes
essential in every type of legal case.”3
Miller, a pioneer of early cyber law, made that observation several
years ago,4 and indeed the reality of that
statement shall be felt on Dec. 1, 2006, when the new proposed changes
to the Federal Rules of Civil Procedure (FRCP) on electronic discovery
become law. Discarding Yesterday’s Concepts

Much has taken place since the first encrypted message was sent over the
telegraph by Secretary of State William Seward in 1866 as he
“clothe[d] its communications with that privacy without which,
oftentimes, they would become valueless.” Just like the era of
the first encrypted message, the concept that when a global email
disclaimer5 or footer is attached to e-mail
that the problem is going to go away indicates a change is perhaps
necessary. One thing we can perhaps all agree on is that the
following message is not going to be well-received by clients, and in
all seriousness professionals are not about to use it, but bankruptcy
professionals may indeed need to read it more than once. 
Warning— This e-mail, including all attachments is not
encrypted. Accordingly, it is possible for others to read and use this
confidential information. We take no responsibility for using
unencrypted e-mail and this e-mail and related attachments may be
deemed by the court to be a waiver of the attorney-client privilege
and work-product doctrine. Example— The “clear
text” found in the “subject line” of e-mail travels
the Internet and discloses issues that may be privileged.

Impuissance Aside We all need to put our shoes on
before we hit the floor running; the same is true for e-mail
and the use of encryption to protect the privilege and work
doctrine.6 Bearing in mind the unfavorable
consequence that may occur during electronic discovery related to
disclosure of purported privileged e-mail and work product to the
opponent is just one of the many ramifications when encryption is not
used. Just like with e-mail, it’s illegal to
“break in” an office building, but we use locks and
security systems. We protect our families and personal property by
installing alarm systems in our homes because we intuitively know what
may happen—after all, that is only common sense. Because when
you send encrypted e-mail, it inhibits others from obtaining access to
that confidential information. Bankruptcy professionals
should be just as interested in protecting the confidentiality and
privacy of e-mail and other forms of electronic communication as they do
their own property. Sharing of e-mails and electronic communications
is common today, and that includes “BCC” and
“CC” e-mails. In business, it has become common practice
to use collaboration technologies for electronic communications; just
be aware that this form of technology is rapidly overtaking the use of
e-mail. That includes instant messaging, streaming video conferencing
and other forms of electronic communications, and this is why insiders,
creditors, professionals and attorneys that play in this game may lose.
Does anyone want to take a guess at how many millions of individuals
were notified that their personal financial information was
compromised in 2005 because of electronic information residing on
computer servers and electronic media that was not encrypted?
We can continue to blame the crooks, but that will not likely

stop them anytime soon, and the
corporations7 making those disclosures
paid the price for being slipshod and not using the “best
practices” to protect what was entrusted to them. 
Accept the Technology Attorney Frank P. Andreano
indicated in his article, “Security and the Legal Profession: A
Beginner’s Guide,” that “attorneys traditionally do
not embrace technological change with vigor. In fact, we generally lag
well behind the business community when it comes to new technologies.
Attorneys are not always the models of sound business practices. We
are often too busy, or simply not inclined to think of our practices
as businesses that need to follow certain rules. If one of our clients
were injured by a business that followed inadequate security
protocols, we would be outraged. If we objectively judged our own
security protocols by those same standards, however, many of us would
likely find our measures woefully
inadequate.”8 In the March
2002 article “Ethics: Revisiting the Question of Attorney/
Client Internet E-Mail Encryption,” Internet Newsletter NLP IP
Co., Attorney Charles Merrill stated that “if the legal
profession, an ‘entire calling,’ unduly delays its
adoption of new and available devices capable of avoiding—for a
trivial cost—the risk posed by the interception of
clients’ confidential information, a modern-day Learned Hand might
well remind them someday that he who ignores history may be doomed to
relive it.” The T.J. Hooper v. Northern Barge Corp., 60
F.2d 737, (2d Cir. 1932) (L. Hand, J.). I received the
following comments from Philip H.
Albert,9 a patent attorney and partner
at Townsend and Townsend, regarding the use of unencrypted e-mail that
speaks to this issue. In general, patent attorneys have an implicit need
to be technical, and this becomes a bull’s-eye regarding the use
of encryption. This becomes very clear when you look at his practice
area, which includes patent prosecution for software, digital signal
and image processing, electronic com-merce technology and
cryptography. Well, we use MS Outlook, which is inherently
insecure. Actually, we worry a lot about communication security. As
lawyers who handle patents, we also have to worry about discovery, so
we are very mindful about what goes into an e-mail and assume that its
contents could appear as an exhibit in court. We assume that every
unencrypted e-mail gets intercepted and treat it accordingly.

Solution for E-Mail Insecurity Providing a solution
for secure communications becomes the next logical step for the
bankruptcy professional, because unless encryption is used confidential
information remains unprotected from “prying eyes” and that
e-mail can easily find itself in the wrong hands. Often
professionals become concerned with their risks, but clients need to
be educated in the fact that technology is not the issue; rather, it
is the solution. Should the client not ask the
bankruptcy attorney for advice on how to protect the privilege and
work product regarding the use of encryption in the 21st Century?
Bankruptcy attorneys and professionals will find themselves involved
like it or not; just remember it is less expensive for the client to
keep out of trouble and protect the privilege using encryption
technology. This author has tested and used numerous e-mail
encryption solutions, and Secured eMail is the one I use. The
Professional Edition includes an automatic compression feature for
attached files, and this solution is easy for the recipient and easy
for the end user. Perhaps this is an offer that cannot be refused or
duplicated, because when you go to www.securede-mail.com/jackseward
you will receive a free Professional Edition license to e-mail
security.10 Secured eMail provides
full product manuals and training materials in pdf format. Questions
about the product can be directed to support@securede-mail.com, and
they generally respond in less than 24 hours, but please do take the
time and read the materials. Secured eMail enables users to
send secured as easily as traditional, nonencrypted messaging. The
only difference the user will see is a “Send secured”
button in Outlook. With a single click of the button, e-mails will be
secured from point to point. The software has full send-to-anyone
capability, and the recipient can simply download and install the free
Secured eMail Reader in order to read Secured eMails. The recipient
then has the ability to reply to the secured e-mail for free if they
are using Outlook. Secured eMail Professional Edition
provides full functionality in minutes. After creating the
“secret” and sharing it with the client, the secret
(password/passphrase) is not necessary to send or read the secured
e-mail. The Enterprise Edition of Secured eMail is industrial strength
and allows for the administration of all e-mail accounts in a
company/firm within minutes. Conclusion Given
the relatively insignificant costs of encryption technology for
bankruptcy professionals as compared to client risks, an appropriate
encryption solution should be selected. Bankruptcy professionals using
this technology should earn their clients’ admiration for
insisting on using the “best practices” to protect
privileged and confidential information in the 21st Century. n

<blockquote> <blockquote> 
</blockquote></blockquote><hr><h3>Footnotes</h3>1 Jack Seward is a
contributing editor for Norton Bankruptcy Law and Practice 2d
by Thompson West, and the ABI Journal’s “Straight
& Narrow” and “Beyond the Quill” columns. He has
written and spoken extensively on the subject of protecting and
retrieving digital electronic information. He may be contacted at
(917) 450-9328 and by fax at (212) 656-1486 or jackseward@msn.com.
2 Mr. Seward was the co-presenter and co-author of
“Protecting Client-CPA-Attorney Information in the Electronic
Age” before the American Accounting Association’s
Northeast Regional Meeting in 2005 urging the use of encryption to
protect the privilege and work-product doctrine. 3 See the
software solution “Lawyer Scan—Computer Forensic Software
Designed for Attorney and Their Clients.” 4 Wright, Charles
Alan, and Miller, Arthur R., Federal Practice and
Procedure (2d. Ed. 1987) 5 Notice: This electronic
mail transmission may constitute an attorney-client communication that
is privileged at law. It is not intended for transmission to, or
receipt by, any unauthorized persons. If you have received this
electronic mail transmission in error, please delete it from your
system without copying it and notify the sender by reply e-mail so
that our address record can be corrected. 6 Seward,
Jack.“Practice Tip: Stop Your E-mail Risk—Now!,”

LJN’s Legal Tech Newsletter www.ljnonline.com, July 2004.
7 LexisNexis and CardCops.com, as well as breaches reported by
Newsweek in the July 4, 2005 issue, including:
CitiFinancial, Bank of America, Commerce Bank, CardSystems, Time
Warner, Choice Point, MCI, DSW Shoe Warehouse, BJ’s Wholesale
Club and UC Berkley. 8
www2.mnbar.org/benchandbar/2000/nov00/security.htm. 9
phalbert@townsend.com; www.townsend.com with offices in with
offices in CA, WA, and CO. <h3> 10 Free offer is limited to
first 3,000 Professional Edition licenses of Secured eEail from the
www.securede-mail.com/jackseward site. Mr. Seward, a user of Secured
eMail, has not and will not be compensated for this testimonial.
See www.securedemail.com for additional information.

Journal Authors

Jack Seward

Journal Date

Wednesday, February 1, 2006 - 12:00

Bankruptcy Rule

2006

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