THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
FORMAL OPINION 1994-11
COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS
October 21, 1994
ACTION: FORMAL OPINION
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THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
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 observes:
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 4-101(A).
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 information.
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 such conversations.