EEME

Introduction

“Privacy is a right like any other. You have to exercise it or risk losing it.”

—Philip Zimmermann, author of PGP

Electronic mail, commonly referred to as “e-mail,” lets you send messages
from your computer through an online service or the Internet to one or more other
computers or “e-mail addresses.” Addressees generally receive your messages in
private electronic “mailboxes.” In return, you can receive messages from others. A
list of e-mail messages in your mailbox usually shows the e-mail address of the
sender and the subject of the message. Some software programs for managing e-
mail, called “filters”, let you designate how to treat incoming e-mail, based on the
sender and the subject matter.

To arrive at your electronic “mailbox,” an e-mail message is broken down
into packets of electronic information, with those packets being sent by different
routes, through different computers, until they reach their destination and are
reassembled. The e-mail message is sent in this fashion to assure the most efficient
utilization of the Internet and its resources, especially telephone lines; but this
method does make the message potentially more vulnerable to being read along
the way, in whole or in part, by those for whom it was not intended—i.e.,
snoopers.

Use of e-mail has increased exponentially. We receive messages around the
clock, at home, at the office, even wirelessly, wherever we may be. Those of us
who have broadband service available leave our e-mail programs connected all the
time and a chime or synthesized voice announces that we have mail. We routinely
send ball scores and recipes around the globe. Electronic correspondence is
flourishing. E-mail may have single-handedly revived the ancient and honored
tradition of the love letter. Professions of love, both prosaic and poetic, are now
shot as Cupid’s digital arrows through cyberspace.

Lawyers’ use of e-mail mirrors that of the public. It is now common to see
e-mail addresses on colleagues’ business cards and on law firm stationery. Many
clients are so conditioned to use e-mail that they insist that their lawyers do
likewise. Lawyers, especially solo practitioners, have found e-mail an economical
way to save on long distance telephone costs, while giving the client an impression
that his/her message is so important that the lawyer will reply from home or on
the road. Using e-mail to reply effectively eliminates "telephone tag", allowing
the lawyer to respond when convenient. The client may receive and read the
lawyer's message without interruption or distraction. E-mail messages are also
easy to archive and print out when needed to document clients' questions, their
instructions, and your answers and advice. Forwarding documents in the body of
an e-mail message or as an attachment has become routine. Entire transactions
now take place via e-mail.

The American Bar Association’s most recent survey reports that “...the
number of respondents whose firms are sending confidential information over the
Internet has increased, as has the number of firms sending information without
any precautions. For a comparison, 76.90% of small firms responding in 1998
sent no confidential information, whereas only 38.95% of small firms responding
in 1999 still sent no confidential information via the Internet. Similarly, while
only 20.80% of responding small firms in 1998 took no precautions when sending
information, 51.44% of responding small firms in 1999 took no precautions with
their Internet communications.” ABA, 1999 Legal Technology Survey Report, at
page 2.

N.Y. Civil Practice Law and Rules 4547, originally proposed by the New
York State Bar Association, ensures that standard privileges for confidential
communications by lawyers, doctors, clergy and spouses are not automatically
waived merely because the communication is made by electronic means. Since
July 1998, in New York, an otherwise privileged communication does not “lose its
privileged character for the sole reason that it is communicated by electronic
means or because persons necessary for the delivery of such electronic
communication may have access to the content of the communication.” However,
lawyers may still have concerns about the security of e-mail messages, especially
when the message contains privileged information sent between a lawyer and a

internet guide for new york lawyers