Attorney-client privilege concerns when using Gmail: Is client consent required?

Does using Gmail or Google Apps for Business raise ethical problems for lawyers? The ABA Journal and Texas Lawyer (sub. req.) have recently reported on this issue, and conclude that the answer is unclear. The central problem arises from Google's ability to scan emails (possibly even emailed attachments, as suggested by Google's patent) for data mining and analysis purposes. Texas Lawyer cites specific concerns with respect to Texas Disciplinary Rule of Professional Conduct 1.05, which prohibits lawyers from "[using] privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation." The idea is that Google's data mining creates an advantage for the lawyer, in that allowing Google to access the content of emails for Google's commercial purposes gives the lawyer access to free email services. If the client does not consent to this "advantage" then a Texas attorney may have an ethical problem.

Even without viewing this in light of the Texas disciplinary rule, however, ABA Journal indicates that Google's data harvesting may present issues relating to attorney-client privilege and confidentiality. Both articles suggest that attorneys may be taking a risk when using these services for legal purposes, particularly if doing so without express client consent.