Currently, Thompson says, there is a consensus among states that encryption is not required. The State Bar of California, however, has yet to weigh in. At least one local bar the Orange County Bar Association has issued a formal opinion. However, the opinion also notes that the wide availability of commercially unbreakable encryption software at affordable prices dictates that the prudent practitioner will investigate and use this technology. In the meantime, issues surrounding e-mail, encryption and confidentiality remain open to debate.
Some attorneys feel sufficient guidelines exist.
Some call for required encryption. And some believe attorneys should obtain permission in a retainer agreement before using e-mail. He points to inherent traps. In addition, he says, there s case law to suggest that an attorney might face liability if an unencrypted e-mail winds up in the wrong hands and results in a costly loss to the client. A key factor, he said, is that encryption services are available at little or no cost.