The last time I checked, 986 practicing lawyers in Alabama have an “@gmail.com” address registered with the bar and published in the bar’s online database as their office email address. Many more are likely using a free Gmail account which is customized to their own internet domain. This means that it is likely that more than 1,000 Alabama lawyers are using free Gmail to communicate with clients and provide legal services. I didn’t check for Hotmail, Yahoo and other free email accounts, but I bet there are quite a few of those, too.
I love Gmail and use it as my only email vehicle for personal email but, especially now that Google has been sued for violation of various state privacy laws and the Federal Wiretap Act as amended by the Electronic Communications Privacy Act, and has argued that it’s users don’t have a reasonable expectation of privacy in messages sent through the service, every Alabama lawyer who uses a free email account for facilitating legal work should be asking whether doing so is ethical.
While the lawyer ethics authorities in Alabama haven’t issued a formal opinion on Gmail or other free email services, here’s what it all boils down to: Under the terms of service for free Gmail, the account user grants to Google a perpetual, worldwide license in his or her email content.
While it is unlikely that any individual at Google would ever review your email, and they expressly state in response to the lawsuit that they don’t, your email and possibly that of your correspondents – even the ones who don’t use free Gmail – is automatically being word-searched so that contextual ads can be served up to you as a result. And the future uses of your data could be countless. Does this really meet your ethical obligation to take reasonable steps to maintain and protect the confidentiality of client information?
A better option if you really like using a web-based email account is Google Apps for Business. For $5 per user per month, you can receive a Gmail account customized to your own domain name, 30GB of inbox/Google Drive storage (vs. 7 GB in free Gmail), Google Calendar, Google instant messaging, 24/7 email and phone customer support, no ads and a service agreement that makes it clear that Google does not take any type of license in your email communications. You can get the price down to $50 per user per year if you sign a 1 year contract. And you can try a 30 day free trial of Google Apps for Business just by filling out an information form. No payment is necessary for the trial.