Last month, the Philadelphia Bar Association’s Professional Guidance Committee issued an interesting technology law-related ethics opinion. The managing partner of a firm in that area requested an advisory opinion because another attorney (“B”) left that law firm and took clients along to his new practice. The opinion addresses matters of client funds, as well as the part that matters to us:
Additional fallout from B’s departure from the firm relates to B’s email account at the firm which the inquirer advises has been set up to reply that B is no longer with the firm. It appears that under this arrangement, the emails are received and read by the firm and forwarded to B if they relate to a matter B took with him. This practice is based on the Inquirer’s position “that any email that comes into the firm is presumptively firm email.” For his part, B has asked that the firm program his former address so that emails simply “bounce back” (presumably unread) to the senders with a message that B’s email account has been closed.
The Committee frames its ethics analysis thus:
For purposes of this inquiry, the Committee takes this to be a twofold question: (1) whether the current procedure for handling B’s emails is in compliance with the Rules and (2) whether, under those Rules, the inquirer must honor B’s request for an automatic “bounceback” reply.
A basic rule is that both “the departing lawyer and the old firm owe an obligation to ensure that the interests of the clients in active matters are competently, diligently and loyally represented” and there’s also the duty “to keep clients informed… of the impending departure of a lawyer who is currently responsible for or plays a principal role in the current delivery of legal services for the client’s active matters”.
The opinion mentions in a footnote the general rule, that we’ve discussed on IT-Lex before, that absent some kind of agreement, there is no expectation of privacy to work emails. To that end, the Committee sees nothing unethical with the law firm’s practice of “opening and reviewing” emails addressed to attorney B, “to the extent necessary to carry out the duties identified above.” On the contrary, the Committee finds that it would problematic, and in violation of the law firm’s duties, to acquiesce to B’s request and just automate a bounceback reply, without actually reviewing the emails.
It is made clear that any email “that is clearly meant for the departing attorney” must be forwarded to the departing attorney, and that the sender of the email must be informed of the departing attorney’s updated contact information.