Client's Confidential Communications
Confidentiality of Your Communications with
a U.S. Attorney
We cannot advise you the confidentiality of your communications under foreign
law or foreign telecommunications practices, but we offer some information on
confidentiality of such communications under American law, whether you are a
resident or nonresident of the United States.
Bierce & Kenerson, P.C. is a law firm whose attorneys are admitted to
practice law in the State of New York. This law includes U.S. federal laws such
as immigration, federal income, gift and estate taxation, and the importation
and exportation of goods.
Attorney-Client Privilege
If you are a client or prospective client of the law firm of Bierce &
Kenerson, P.C., you should be entitled under U.S. common law (as declared by the
highest court) to the confidentiality of communications between an attorney and
his/her client or prospective client. Where you come to us seeking legal advice,
we are under an ethical obligation to maintain the confidentiality of your
communications that relate to our legal advice, unless you are seeking to
violate the law.
A lawyer should be fully informed of all the facts of the matter he is
handling in order for his client to obtain the full advantage of our legal
system. ... The observance of the ethical obligation of a lawyer to hold
inviolate the confidences and secrets of his client not only facilitates the
full development of facts essential to proper representation of the client but
also encourages laymen to seek early legal assistance. AMERICAN BAR ASSOCIATION
CODE OF PROFESSIONAL RESPONSIBILITY, EC 4-1.
The U.S. Supreme Court enforced this obligation in the leading decision of
Upjohn Co. v. United States, 449 U.S. 387, 101 S.Ct. 67 7 (1981). This privilege
applies both to individual clients and to corporate clients. United States v.
Louisville & Nashville R. Co., 236 U.S. 318, 336, 35 S.Ct. 363, 369, 59 L.Ed.
598 (1915), cited in the Upjohn decision, 101 S.Ct. at 682-83.
Use of Internet E-Mail to Communicate with Attorneys
A lawyer may transmit information relating to the representation of a client
by unencrypted e-mail sent over the Internet without violating the Model Rules
of Professional Responsibility. Am. Bar Ass'n, Standing Committee on Ethics and
Professional Responsibility, Formal Opinion No. 99-413 (March 10, 1999).
American federal law grants to Internet e-mail and other "electronic
communications" the same privacy that applies to the Postal Service,
commercial mail services, land-line telephone communications and facsimile
("fax") transmissions. Electronic Communications Privacy Act of 1986,
Pub. L. No. 99-508, 100 Stat. 1848 (1986), amending ths Federal Wiretap Statute,
18 U.S.C.A. Sec. 2510 et seq. (1998). This law provides criminal and civil
penalties for the unauthorized interception or disclosure of any wire, oral or
electronic communication. 18 U.S.C.A. Sec. 2511.
Precautions to Protect Confidentiality of Attorney-Client Communications
(for Clients and Prospective Clients)
As your attorneys (or as prospective attorneys evaluating whether to become
your attorneys), we recommend that you add the following text to all written
communications with us:
- This is as privileged and confidential communication to attorneys for the
purpose of seeking legal advice.
Technological Risks of Loss of Confidentiality
As lawyers, we must discuss with our clients and prospective clients their
sensitivity and the sensitivity of our communications, the costs of disclosure
using different methods of communication and the relative security of the method
or medium of communication. Generally, the cheapest method is the least
technologically secure. E-mail is less secure than a fax or a land-line
telephone. Cell phones are somewhat insecure. Faxes and land-line telephone are
less secure than postal mail or private mail, which turn are less secure than
in-person discussions in our offices. Despite these technological differences,
each of these forms of communication is recognized (as noted above) as having a
reasonable expectation of privacy.
If you prefer to minimize the technological risk of data interception via the
Internet, we recommend that you send us your confidential information by fax
(fax: 212 840 6210). We suggest that you contact us by mail to confirm that you
sent a fax so that we can contact you if we have not received the fax.
Other Confidentiality Issues: Cookies
At present, we do not use "cookie" technology to identify visitors
to our websites. However, we may do so in the future in order to identify repeat
visitors, to exclude unauthorized visitors, to enable us to communicate with you
about legal matters and other matters that may be properly and lawfully
presented by lawyers. "Cookies" are merely numbers that are
arbitrarily assigned to identify a visitor's computer. This technology
facilitates the process of knowing our clients (and prospective clients) and
thereby support our ethical practice of the profession of providing legal
advice.
If you have any question about these matters, please feel free to call us
without obligation. |