Recently I noticed a resurgence of the debate on the wisdom of lawyers using hosted, freebie email accounts. The basic concern has been about the security of these types of email addresses. It is quite easy to spoof one of these addresses and intercept communications. As well Twitter can testify that once cracked, the passwords for these sites are quite useful for other hacking.
An avid Gmail user myself, I was recently accessing my account via browser, and noticed the text-based ads. After some various testing, it became apparent Google was ‘reading’ my email to present ads relevant to the topics of my email. In one example, I could tell Google knew the content from the message body versus just the subject line.
After a gentle reminder from my 3 Geeks co-blogger Lisa, I went and re-read the Terms of Service (TOS) from Google, followed by the same from Yahoo. Both services retain rights to any Content that touches their services, including communications (a.k.a. email).
8.3 Google reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from any Service.
11.1 By submitting, posting or displaying the content you give Google a perpetual, … free … licence to … any Content.
17.1 [a]dvertisements may be targeted to the content of information stored on the Services, queries made through the Services or other information.
6. You acknowledge that Yahoo! may or may not pre-screen Content, but that Yahoo! and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any Content….
And from the ABA Model Rules of Professional Conduct:
Rule 1.6. (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent ….
So beyond the security concerns, it appears that the use of popular, free email services for client communications is a violation of ethics rules since lawyers are revealing client information to a third party.
If you didn’t have enough reasons for moving to a secure email address on a domain you own, you can now add “getting a letter from Discipline Counsel” to the list.