Is using Gmail ethically permissible for lawyers? Executive summary: in New York, seemingly yes. In North Carolina… I’d be wary.
The Lawyerist and 3 Geeks and a Law Blog have had a back and forth on this topic. It’s an important topic, in my estimation. I get a lot of emails from lawyers across North Carolina that come from an @gmail.com (as opposed to Google Apps for Business) email address. In many cases, it’s clear these attorneys are using Gmail as their professional email address.
The Lawyerist column that concludes that Gmail is appropriate for lawyers, while Toby Brown from 3 Geeks says it ain’t. The substance of the dispute: whether a clause in Gmail’s Terms of Service (granting The Google a perpetual license in your email content) is a violation of attorneys’ ethical duties vis a vis maintaining client confidentiality.
In my opinion, there’s not an objective right and wrong here, only what is permissible in the state in which one practices. New York lawyers benefit from a clear directive permitting the use of Gmail, so I don’t see why they should avoid a software product that has been ruled in bounds. On the other hand, in North Carolina we don’t have an ethics opinion on whether Gmail is ethically permissible. So, when I talk to lawyers in North Carolina I always give the same warning that Toby mentions in his post.
The pragmatist in me can’t get past that the whole issue is easily avoidable for someone who is willing to figure out Google Apps (which Terms of Service does not suffer from the same problematic language). Actually, you don’t even need to figure out Google Apps; you can just pay a company like DNA Mail to set it up for you. That’s what I did and it worked great. $4 a month and a free 30 day trial. It may not be free but it’s damn close. All the same Googly goodness, no pesky loss of law license.
If I was practicing law in a NC, I wouldn’t use a Gmail account. Maybe our State Bar Ethics Committee will tackle the issue and rule it fair game just like in NY. But until then, I wouldn’t want to be the test case.
On the other hand, Gmail and its Terms of Service aren’t so offensive that if I was practicing law in NY that I wouldn’t consider saving myself the $4 a month and just using the free version.