Ethics Opinion

Summary: Lawyers should not discuss confidential information on a cellular telephone if there is any nontrivial risk that such information may be overheard by a third party, whether that third party is involved in the particular matter or not, unless the client, after full disclosure of the dangers to confidentiality, consents to such communication.

Facts: A law firm wishes to use cellular telephones to communicate with clients about their matters. It recognizes that there are security problems with the use of cellular telephones, but is states that there is almost no risk of interception by parties with an interest in the subject matter of the call, especially since many of the calls will take place in thinly populated areas.

Discussion: Disciplinary Rule 4-101 imposes on the lawyer the obligation not to reveal confidences and secrets except with the consent of the client and in certain other situations not relevant to this inquiry. (We assume that the inquiry does not relate to cellular telephone conversations where clients have expressly waived confidentiality.) We are not in a position to respond to the inquiry on the basis of the latest scientific knowledge about problems of cellular telephones. Nevertheless, it is common knowledge that simply by monitoring the airwaves, strangers are able to intercept normal cellular telephone calls and that the cellular telephone is not a secure method of communication. Indeed, courts have held, in both civil and criminal contexts, that users of cellular telephones have no reasonable expectation of privacy in their conversations. See Tyler v. Berodt, 877 F.2d 705 (8th Cir. 1989), cert. denied, 110 S. Ct. 723 (1990), and cases cited in that opinion.
In our Opinion 89-3, involving the permissibility of a lawyer's use of an independent billing service if that involved transmission of some confidential client information to the service, we stressed the responsibility of lawyers for the preservation of client confidences from disclosure by their employees and agents. In our view, lawyers should not discuss confidential information on a cellular telephone if there is any nontrivial risk that such information could be overheard by a third party, whether that third party be involved in the particular matter or not. What counts as nontrivial is an assessment that we are not in a position to make, but we do believe that, at least without client consent, a lawyer ought to resolve doubts in favor of protecting confidentiality. See Opinion 90-7 of the Committee on Professional Ethics of the Illinois Bar Assn, ABA/BNA Lawyers' Manual on Professional Conduct, 901:3014, reaching the same conclusion. Moreover, as scrambler systems are developed to increase the security of cellular telephone conversations, lawyers will have to investigate the effectiveness of those systems in order to decide whether they reduce the risk to the trivial category.