Last week, The Telegraph reported that UK solicitors who handled real property transactions had been hit by a wave of fraudulent activity. Hackers took advantage of the fact that email is inherently unsecure and unencrypted and were able to intercept emails between real estate attorneys and their clients. The hackers then used that information to change bank deposit details in subsequent emails, thus steal closing funds.
This type of fraud was first reported in mid-2015 and has continued unabated since that time. That’s why, according to the Technologist blog, after reports that hundreds of thousands of pounds had been stolen, Britain's Conveyancing Association, a professional body whose members handle 1/5 of property transactions in England and Wales, advised lawyers, conveyancers, and clients to stop using email.
This type of email fraud isn’t limited to the UK. As reported by the ABA Journal in January 2016, US attorneys are also facing similar threats. Even so, attorneys continue to use email for confidential client communications in part out of habit. After all, email was given the ethics green light by the ABA back in the 1990s.
But clearly, times have changed. There are more secure alternatives for client communication, a fact that bar associations have recently begun to acknowledge. In fact some have issued opinions requiring lawyers to balance the sensitivity of the information being discussed with the security offered by the specific technology being used. (See, for example, ABA Formal Opinion 11-459  and more recently Texas Ethics Opinion 648).
Opinion 648 was issued in April 2015. At issue was whether lawyers could send confidential information to their clients via email. The Committee concluded that not all information could be ethically shared with clients using email: “(C)onsidering the present state of technology and email usage, a lawyer may generally communicate confidential information by email. Some circumstances, may, however, cause a lawyer to have a duty to advise a client regarding risks incident to the sending or receiving of emails arising from those circumstances and to consider whether it is prudent to use encrypted email or another form of communication.”
So, in light of changing technology standards and the increasing security threats posed by unencrypted email, lawyers are increasingly being advised to consider alternate methods of communication. Fortunately, there are more secure methods available for discussing confidential matters with clients, including web-based client portals, as Casey Sullivan notes in the Technologist post addressing the UK-based email fraud:
So not surprisingly, according last year’s ABA Legal Technology Survey Report, the number of lawyers communicating and collaborating with clients online increased every year from 9% in 2011 to 19% in 2012, 32% in 2013, and 33% in 2014. Another reason Web-based client portals are one of the most popular alternatives to email is that they allow lawyers to securely share case-related information with their clients, all in one convenient location. The cumbersome back and forth process of unsecure, threaded emails is avoided and is instead replaced by the ability to securely communicate in an encrypted, controlled online environment.
That’s why online communication portals are increasing in use, and for good reason: they provide lawyers with a more secure way to communicate. While no technology is 100% secure, online portals are far more secure than unencrypted email and are a great way to thwart the threat of hackers. So whether you plan to use online communication portals, encrypted email, or snail mail, make sure to research your options and choose—and communicate—carefully.
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