This article is provided for general educational and informational purposes only. It is not legal, financial, or tax advice and does not create an attorney-client relationship. Laws, procedures, and agency rules can differ by jurisdiction and may change over time. A qualified professional can address specific facts and current requirements. The author and publisher are not responsible for actions taken based on this information.
Key Facts
- National overview: ABA Model Rule 1.6 generally prohibits a lawyer from revealing information relating to the representation of a client without informed consent or another permitted basis.
- National overview: ABA Model Rule 1.6 also requires reasonable efforts to prevent inadvertent or unauthorized disclosure or unauthorized access to client information.
- National overview: ABA Model Rule 1.1 competence includes keeping abreast of changes in law and practice, including the benefits and risks associated with relevant technology.
- State level: California Rule 1.6 states that lawyer-client confidentiality encompasses the attorney-client privilege and the work-product doctrine.
- State level: California Rule 1.1 competence includes keeping abreast of changes in law and practice, including the benefits and risks associated with relevant technology.
- National overview: ABA Formal Ethics Opinion 477R says a lawyer generally may transmit protected client information over the internet with reasonable efforts to prevent inadvertent or unauthorized access, with possible requirements for special security precautions.
- National overview: United States v. Kovel describes the privilege as depending on communications made in confidence for the purpose of obtaining legal advice from the lawyer.
- Federal level: 18 U.S.C. § 2702 generally prohibits an electronic communication service provider from knowingly divulging the contents of communications in electronic storage, subject to statutory exceptions.
- Federal level: 18 U.S.C. § 2703 includes a warrant-based pathway for contents in electronic storage for one hundred and eighty days or less.
Using internet-based search and cloud productivity tools can create legal questions at multiple layers, including federal Stored Communications Act provisions, ethics duties about confidentiality and technology competence, and attorney-client privilege principles when communications involve nonlawyer participants. This article explains how these frameworks interact using official text and court language as sources.
- Ethics duties for confidentiality and technology competence
- State ethics rules can connect confidentiality, privilege, and work product
- ABA Formal Opinion 477R addresses internet transmission and security precautions
- Attorney client privilege depends on purpose and confidentiality
- Federal law the Stored Communications Act limits provider disclosure of stored contents
- Federal law government access to stored content follows statute specific procedures
- Putting it together different questions, different answers
- References used in this overview
- Sources
Ethics duties for confidentiality and technology competence
ABA Model Rule 1.6 states that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent or another permission applies. The same rule also requires reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation. (See ABA Model Rule 1.6: Confidentiality of Information.)
Competence connects to technology too. ABA Model Rule 1.1’s comment explains that maintaining the requisite knowledge and skill includes keeping abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. (See Rule 1.1 competence comment.)
A related discussion on how technology can affect confidentiality risk appears in technology and privacy concerns in legal settings.
State ethics rules can connect confidentiality, privilege, and work product
California’s rule language illustrates how a state can connect confidentiality duties with privilege and work-product protections.
California Rule 1.6 provides that a lawyer shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) unless the client gives informed consent or the disclosure is permitted by the rule. California Rule 1.6 materials also state that lawyer-client confidentiality encompasses the attorney-client privilege and the work-product doctrine. (See California Rule 1.6 Confidential Information.)
California’s competence rule also tracks technology risk language. California Rule 1.1 includes keeping abreast of changes in law and its practice, including the benefits and risks associated with relevant technology. (See California Rule 1.1 Competence.)
ABA Formal Opinion 477R addresses internet transmission and security precautions
When lawyers transmit information over the internet, ABA Formal Ethics Opinion 477R focuses on the reasonableness of security efforts rather than on treating third-party involvement as automatically disqualifying.
The opinion states that a lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. It also explains that a lawyer may be required to take special security precautions when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security. (See ABA Formal Ethics Opinion 477R.)
Attorney client privilege depends on purpose and confidentiality
Attorney-client privilege analysis is different from ethics confidentiality rules. Privilege can depend on the purpose of the communication and whether it was made in confidence for legal advice.
In United States v. Kovel, the court states that what is vital to the privilege is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer. Kovel frames privilege as a test centered on confidentiality and the legal-advice purpose.
For additional background on privilege concepts and common third-party issues, see attorney-client privilege fundamentals and third-party issues.
Federal law the Stored Communications Act limits provider disclosure of stored contents
Federal statutory limits apply when electronic communications providers store content as part of providing electronic communication services or remote computing services.
18 U.S.C. § 2702 generally prohibits a provider from knowingly divulging the contents of a communication while in electronic storage, subject to statutory exceptions. (See 18 U.S.C. § 2702.) This sets a baseline that focuses on provider behavior regarding stored contents, rather than on attorney-ethics duties alone.
Federal law government access to stored content follows statute specific procedures
The Stored Communications Act also sets procedures for government requests for stored communications and records. Those procedures depend in part on how long the contents have been in electronic storage.
18 U.S.C. § 2703 includes a warrant-based pathway for contents in electronic storage for one hundred and eighty days or less, stating that disclosure for that storage duration is only pursuant to a warrant. (See 18 U.S.C. § 2703.)
Definitions also matter when determining whether a service fits the statute’s coverage. For example, 18 U.S.C. § 2711 defines “remote computing service” as the provision to the public of computer storage or processing services by means of an electronic communications system. (See 18 U.S.C. § 2711.)
How the frameworks compare when online tools involve third parties
| Framework | What it addresses | Key idea from the controlling text |
|---|---|---|
| Ethics confidentiality | Lawyer duties about representation-related information | ABA Model Rule 1.6 prohibits revealing representation-related information without informed consent or another permitted basis and requires reasonable efforts to prevent inadvertent or unauthorized disclosure or access |
| Ethics competence | Lawyer duties tied to technology and practice changes | ABA Model Rule 1.1 comment ties competence to keeping abreast of benefits and risks associated with relevant technology |
| Privilege | Whether communications stay protected for legal-advice purposes | Kovel emphasizes that privilege depends on communications made in confidence for the purpose of obtaining legal advice from the lawyer |
| Stored Communications Act | Provider disclosure limits and government access procedures for stored contents | § 2702 restricts knowing provider disclosure of contents in electronic storage; § 2703 sets legal pathways, including a warrant requirement for one hundred and eighty days or less |
Putting it together different questions, different answers
Treating attorney-client confidentiality as a single guarantee can lead to confusion because the governing authorities address different things.
- Ethics confidentiality focuses on the lawyer’s disclosure choices and on “reasonable efforts” to prevent inadvertent or unauthorized disclosure or access, with ABA Formal Opinion 477R analyzing internet transmission through that reasonableness lens.
- Privilege focuses on the purpose and confidentiality of the communication for obtaining legal advice, which Kovel describes in terms of communications made in confidence for that legal-advice purpose.
- The Stored Communications Act focuses on what providers may or may not divulge about stored contents and on the legal procedures that govern government access, including a warrant pathway for contents in electronic storage for one hundred and eighty days or less.
Because these frameworks use different tests, third-party involvement does not automatically determine confidentiality, privilege, or provider-disclosure outcomes by itself. The outcome depends on which rule is being applied and what each test requires.
References used in this overview
Key references include the following:
- ABA Model Rule 1.6 confidentiality rule
- ABA Formal Ethics Opinion 477R
- California Rule 1.6
- 18 U.S.C. § 2702
- 18 U.S.C. § 2703
- 18 U.S.C. § 2711
The privilege discussion relies on United States v. Kovel.
