From the Ethics Committee (November 30, 2000)
The security of electronic communications
Because of the potential to alter ordinary e-mail after it has been sent and the difficulty of proving that an e-mail message has been tampered with, the Ethics Committee is of the view that it is unwise for lawyers to send communications that must be in writing, or that must be in writing and signed to be effective, by ordinary e-mail. This includes communications intended to fulfil a lawyer's obligations set out in the Professional Conduct Handbook.
The Committee recommends that these communications be made and transmitted in ordinary written form, or through the use of secure e-mail where the electronic signatures of the relevant parties can be verified. In appropriate circumstances, of course, ordinary e-mail can be used to conduct negotiations or to confirm understandings or agreements that can later be confirmed through paper or secure e-mail communications.
Some examples of communications that must be in writing in order to conform to the requirements of the Professional Conduct Handbook are the following:
- Chapter 10, Rule 6: Client may agree that lawyer can withdraw for non-payment of fee.
- Chapter 11, Rule 7.1: Undertakings should be in writing.
- Appendix 3, Rule 6: lawyer acting for more than one party in a real estate transaction must give certain advice and obtain consent in writing.
For a discussion of issues related to the transmission of confidential information over the internet, see the June-July, 1998 Benchers' Bulletin.