Can a lawyer discuss confidential client matters over a cellular telephone?

Plain-English summary

A law firm wanted to use cellular telephones to talk with clients about their matters. It recognized the security problems but believed there was almost no risk of interception by anyone interested in the subject of the call, particularly because many calls would occur in thinly populated areas.

The committee began with DR 4-101, which obliges a lawyer not to reveal confidences and secrets absent client consent (assuming the inquiry did not involve calls where the client had expressly waived confidentiality). Without claiming current scientific expertise, the committee observed it was common knowledge that strangers can intercept ordinary cellular calls simply by monitoring the airwaves, that the cellular phone is not a secure method of communication, and that courts had held cellular users have no reasonable expectation of privacy (citing Tyler v. Berodt).

Drawing on its Opinion 89-3 (a lawyer's responsibility for confidences handled by employees and agents, in the context of an independent billing service), the committee concluded that a lawyer should not discuss confidential information on a cellular telephone if there was any nontrivial risk a third party could overhear it, whether or not that third party was involved in the matter. It said it could not define what counts as nontrivial, but that at least without client consent a lawyer should resolve doubts in favor of protecting confidentiality, citing an Illinois opinion reaching the same conclusion. It added that as scrambler systems developed, lawyers would have to assess their effectiveness to decide whether they reduced the risk to the trivial category.

Currency note

This opinion was issued in 1994, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer talk about confidential client matters on a cell phone?

A: Only with care. The committee concluded a lawyer should not discuss confidential information on a cellular telephone where there is any nontrivial risk a third party could overhear it, unless the client consents after full disclosure.

Q: Did it matter whether an interested party was likely to be listening?

A: No. The committee said the concern applied whether or not the third party who might overhear was involved in the particular matter.

Q: How should a lawyer handle uncertainty about the risk?

A: The committee said it could not define "nontrivial," but advised that, at least without client consent, a lawyer should resolve doubts in favor of protecting confidentiality.

Background and rules framework

The opinion applied the predecessor disciplinary rule DR 4-101 (obligation not to reveal client confidences and secrets absent consent), corresponding to Model Rule 1.6 (confidentiality), to the then-new technology of cellular telephones. It relied on its Opinion 89-3 and on case law holding cellular users lack a reasonable expectation of privacy.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / DR 4-101 (confidentiality)

Cases:

• Tyler v. Berodt, 877 F.2d 705 (8th Cir. 1989), cert. denied, 110 S. Ct. 723 (1990) (no reasonable expectation of privacy in cellular calls)

Other opinions cited:

• MBA Opinion 89-3 (lawyer's responsibility for confidences handled by employees and agents)
• Illinois State Bar Opinion 90-7 (same conclusion on insecure communications)

See also

• MA Bar Ethics Op. 00-1: Unencrypted email and client confidentiality
• MA Bar Ethics Op. 94-7: Disclosing a client's identity under an IRS summons

Source

• Landing page: https://www.massbar.org/publications/ethics-opinions/ethics-opinion-article/ethics-opinions-1994-opinion-no-94-5/opinion-no-94-5