ASSOCIATION OF THE BAR OF THE CITY
OF NEW YORK COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS
Year 1994 Ethics Opinions
THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
FORMAL OPINION 1994-11
COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS
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October 21, 1994
ACTION: FORMAL OPINION
TOPIC: Confidentiality; Use of
cellular and cordless telephones.
DIGEST: A lawyer should exercise
caution when engaging in conversations containing or concerning
client confidences or secrets by cellular or cordless telephones
or other communication devices readily capable of interception,
and should consider taking steps sufficient to ensure the
security of such conversations.
CODE: DRs 4-101(A); 4-101(B),
4-101(C)(1); EC 4-1.
May a lawyer carry on
conversations concerning confidential client matters by cellular
or cordless telephone or other communication devices that are
readily capable of interception by third parties?
Technological advances and
declining prices have resulted in an explosion in the use of
cellular telephones over the past several years. Nearly 20
million people now own cellular phones, as compared with only
about 200,000 in 1985. See Larry A. Strauss, Safety Spurs
Cellular Phone Sales, USA Today, Sept. 6, 1994, at 1A. Many such
telephones are used by lawyers in communicating with their
clients, other lawyers, or non-lawyers working with them on
client matters. However, conversations conducted over cellular
phones -- which are essentially two-way FM radios -- are readily
capable of being intercepted and listened to surreptitiously,
even though it is a crime to do so, see 18 U.S.C. § 2510 et
seq.; N.Y. Penal Law § 250.05; United States v. Kim, 803 F.
Supp. 352, 361 (D. Haw. 1992), aff'd, 25 F.3d 1426 (9th Cir.
1994); Sharon v. Sharon, 147 Misc. 2d 665, 667 (Sup. Ct. Nassau
Co. 1992), and even though it is unlawful to publish or use
intercepted communications, see 47 U.S.C. § 605. See generally
Salmon v. State, 426 S.E.2d 160, 162 (Ga. Ct. App. 1992) (no
expectation of privacy in cellular phone communications), cert.
denied, 1993 Ga. LEXIS 267 (Ga. 1993); PG Publishing Co. v.
County of Washington, 638 A.2d 422, 429-30 (Pa. Commw. Ct. 1994)
(same). Radio scanners can be purchased relatively cheaply and
programmed to search for cellular conversations. Although many
eavesdroppers are casual hobbyists, others have joined an
underground industry that listens to conversations being
conducted on cellular telephones, seizes on those of potential
interest to persons such as litigants, business competitors or
political adversaries, and attempts to sell the intercepted
information to the interested party. See generally James J.
Harrison, Cellular Phones are Weakest Security Link, Legal Times,
Jan. 25, 1993, at 27 (hereinafter "Harrison"); Robert
Jesse, How Not to Protect Communications, N.Y. Times, Sept. 13,
1986, at 27, col. 2; United States v. Carr, 805 F. Supp. 1266,
1270 (E.D.N.C. 1992).
Conversations carried on over
cordless phones are equally susceptible to interception by anyone
within range of the handset or base transmitters. Because of this
susceptibility, courts have repeatedly held in Fourth Amendment
cases that there can be no reasonable expectation of privacy in
the content of cordless phone conversations. See United States v.
Smith, 978 F.2d 171, 179 (5th Cir. 1992), cert. denied, 113 S.
Ct. 1620 (1993); Tyler v. Berodt, 877 F.2d 705, 706-07 (8th Cir.
1989), cert. denied, 493 U.S. 1022 (1990); United States v. Carr,
805 F. Supp. at 1271; Edwards v. Bardwell, 632 F. Supp. 584,
588-89 (M.D. La.), aff'd mem., 808 F.2d 54 (5th Cir. 1986); State
v. Howard, 679 P.2d 197, 206 (Kan. 1984); State v. Neisler, 635
So. 2d 433, 436 (La. Ct. App. 1994); People v. Fata, 139 Misc. 2d
979, 982-83 (Sup. Ct. Rockland Co. 1988), aff'd, 159 A.D.2d 180
(2d Dep't), leave to appeal denied, 76 N.Y.2d 985 (1990); State
v. Bidinost, 1993 Ohio App. LEXIS 3097, at 23-25 (Ohio Ct. App.
1993); State v. Smith, 438 N.W.2d 571, 577-78 (Wis. 1989). While
the relative newness of the technology, and the criminal
prohibition on eavesdropping, may well support the conclusion
that a lawyer's expectation of privacy on a portable telephone is
reasonable, that is an issue of law on which we express no
opinion. We note, in this regard, that California recently
enacted legislation providing that attorney-client communications
do not lose their privileged character simply because they are
conducted on a cellular or cordless telephone. 1994 Cal. Adv.
Legis. Serv. 186 (Deering) (amending Cal. Evid. Code § 952).
The duty to preserve the
confidences and secrets of clients, embodied in DR 4-101(B),
inheres in the fiduciary relationship between lawyer and client,
and is an essential underpinning of our legal system. As EC 4-1
A client must feel free to discuss
anything with his or her lawyer and a lawyer must be equally free
to obtain information beyond that volunteered by the client. . .
. The observance of the ethical obligation of a lawyer to hold
inviolate the confidences and secrets of a client not only
facilitates the full development of facts essential to proper
representation of the client but also encourages non-lawyers to
seek early legal assistance.
See also N.Y. City 1994-8, 1986-8,
1986-7. "Confidence" refers to information protected by
the attorney-client privilege as a matter of law.
"Secret" is defined much more broadly, however, and
refers to any information, whether or not privileged, that was
gained in the professional relationship and that the client has
requested be held inviolate or the disclosure of which would be
embarrassing or would likely be detrimental to the client. DR
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A lawyer who possesses client
confidences or secrets must 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
(Tentative Draft No. 3, 1990). When sensitive information is
transmitted by cellular or cordless phone, however, its
confidentiality may be at risk. See generally Milo Geyelin,
Cellular Phones May Betray Client Confidences, Wall St. J., Sept.
1, 1994, at B1, col. 3 (hereinafter "Geyelin"). Even
the cautious lawyer may not foresee every possible way in which
confidential information may be broadcast for potential
interception. The simple process of calling in for voice-mail
messages, for example, may involve the revelation of confidential
information, as clients or associated attorneys leave detailed
messages to avoid "telephone tag." See Harrison, supra.
Consequently, lawyers should exercise caution when discussing
client matters on a cellular or cordless telephone.
Fortunately, technology has begun
to respond to the need for privacy in cellular and cordless
telephone communications. Scrambling or encryption of signals is
one way in which the telecommunications industry has attempted to
provide security. See United States v. Smith, 978 F.2d at 179;
Geyelin, supra; Harrison, supra. Lawyers should consider taking
measures sufficient to ensure, with a reasonable degree of
certainty, that communications are no more susceptible to
interception than standard land-line telephone calls. At a
minimum, given the potential risks involved, lawyers should be
circumspect and discreet when using cellular or cordless
telephones, or other similar means of communication, to discuss
client matters, and should avoid, to the maximum reasonable
extent, any revelation of client confidences or secrets. See
generally Illinois 90-7; Iowa 90-44 (1991); Massachusetts 94-5.
Lawyers should also be aware that
the parties they are calling may not fully appreciate the
security risks involved and may begin to divulge sensitive
information; when appropriate, the called party should be warned
that the lawyer is speaking on a cellular or cordless telephone
and that confidential information should not be discussed. See
Harrison, supra. Similarly, lawyers should be attuned to the
possibility that, while their own telephones may be
"secure," their clients or the other attorneys with
whom they speak may be using a cellular or cordless phone, and
should caution those parties to avoid revealing sensitive
There is no question that cellular
and cordless telephones are a great convenience to the public in
general. Lawyers, however, owe their clients a solemn duty of
confidentiality, and thus should take steps to avoid the danger
of inadvertent disclosure of client confidences or secrets
through the use of non-private means of communication.
A lawyer should exercise caution
when engaging in conversations containing or concerning client
confidences or secrets by cellular or cordless telephones or
other communication devices readily capable of interception, and
should consider taking steps sufficient to ensure the security of
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