Confidential Communication?
Cellular and Cordless Telephones and the Attorney-Client Privilege

by Heidi L. McNeil and Robert A. Henry

To many attorneys, using a cellular telephone is an indispensable part of practice. Clients appreciate the lawyer who is more accessible. Attorneys appreciate the opportunity to turn otherwise wasted time away from the office into productive — and billable — use. The cellular telephone has, quite simply, made the daily practice of law more efficient and, in some ways, easier. Thus, it is not surprising that attorneys are one of the highest subscribers to cellular phone services.

The other wireless telephone — the cordless telephone — is also making its way into the daily practice of law. Long a standard household item, many attorneys are bringing the cordless telephone into the office. Like the cellular telephone, the cordless phone offers attorneys greater flexibility and mobility, even if it is only within the office.

Unfortunately, too many attorneys are embracing these gifts of modern technology without careful consideration of how they should be used. By now, everyone knows — or should know — that a cellular or cordless conversation is as private as a chat in the bleachers at Wrigley Field. Many have experienced the phenomenon of eavesdropping on a neighbor’s conversation because of two cordless phones operating on the same frequency. Others have experienced the frustration (and occasional humor) of losing a cell phone conversation to the suddenly overpowering conversation of strangers. What was once the exception on landlines has now become the norm in the wireless world. As one observer has noted, "[a]nybody who talks on a cellular or cordless phone and gives out personal information might as well get on TV and give the information out."¹

For some reason, this lack of privacy apparently does not dissuade the cellular and cordless telephone population. Cordless and cell phone users faithfully assume that no one will listen to their particular conversation. Others just do not care. Attorneys, though, should care. Like all tools of the trade, the wireless telephone must be used properly.

A cellular or cordless conversation with a client or colleague may not be protected by the attorney-client privilege. Even if it is privileged, it may not matter. Consider what would happen if an opposing or simply interested party knew the substance of your wireless conversations. A client surely will not care that his or her corporate takeover plans are protected by the attorney-client privilege if the takeover is the lead article in the daily business periodical.

This article discusses the attorney-client privilege issues associated with cellular and cordless communications and the differences in how the privilege applies to each. Ultimately, whether a communication should be made over a cellular or cordless telephone, regardless of its privileged nature, is reserved to the attorney’s better judgment.

A Technological Difference

The technological and practical differences between cellular and cordless phones require different standards and analyses.² A cordless phone is little more than a two-way radio between the phone and the receiver — the speaker’s voice is transmitted between the two on AM or FM radio signals. Interception of cordless communications is easy and quite common.

By contrast, cell phones³ transmit to one of several "cells" in a geographic area over frequencies expressly allotted for cellular communications.⁴ As the caller moves, the frequency and the cell to which he transmits changes. This mobility and constant cell transferring makes it "relatively difficult" to eavesdrop on a cell phone conversation for extended periods of time.⁵ While eavesdropping on a cordless telephone can be done with ordinary radio equipment and little skill, intercepting a cellular communication requires relatively sophisticated equipment — scanners — and the skill to operate them. To make interception of cell phone communications even more difficult, the Telephone Disclosure and Dispute Resolution Act of 1993 prohibits the manufacture and sale of scanners and similar devices capable of intercepting such communications.⁶

Electronic Communications Privacy Act

In analyzing the privileged nature of wireless communications, the first place to turn to is the Electronic Communications Privacy Act of 1986 (the ECPA). The ECPA prohibits the intentional interception of cellular and cordless communications and the dissemination of information "derived from" any unauthorized interception.⁷ The ECPA also provides that certain intentionally intercepted communications are privileged in court proceedings.⁸

The ECPA is designed to protect wire, oral, and electronic communications, but, interestingly, the ECPA’s privilege provision applies only to unauthorized intercepted "wire or oral communications."⁹ In other words, for some reason, ECPA’s privilege provision does not protect electronic communications. Thus, if cellular or cordless communications are deemed to be wire or oral communications, they are privileged. If they are deemed to be electronic communications, they may still be privileged, but not as a result of the ECPA.

Unfortunately for this analysis, cellular communications can easily be classified as either wire or electronic communications.¹⁰ In fact, the Third Circuit has noted — in dicta — that it is reasonable to conclude that cellular communications can be either wire or electronic communications.¹¹ Oddly, the court failed to offer any explanation or analysis of which of the two they are, quoting both a U.S. Senator who considered cellular communications to be wire communications under the ECPA and a member of the House of Representatives who considered them to be electronic communications.¹² However, a subsequent court opined that cellular communications "are included in the definition of ‘wire communications’ and are covered by the statute."¹³ Again, though, this conclusion was mere dicta. Thus, no court — in Arizona or elsewhere — has yet addressed the specific issue of whether cellular communications are protected by the ECPA’s privilege provision. The legislative history of the ECPA and its amendments offers no guidance.

Cordless Phones and the ECPA

Cordless phones have a different history under the ECPA. Originally, conversations over cordless phones were expressly excluded from the ECPA’s protection because they were "neither wire nor electronic communications."¹⁴ In 1994, however, Congress amended the ECPA to include cordless communications.¹⁵ Courts that have analyzed the amended statute readily acknowledge that post-1994 conversations over cordless phones fall under the ECPA’s umbrella of protection.¹⁶ As is the case with cellular communications, though, no court has yet addressed the specific issue of whether the ECPA’s privilege provision protects cordless phone communications.

Wireless Communications and the Attorney-Client Privilege

Whether wireless telephone communications are protected under the general attorney-client privilege (codified in most states) is also less than clear. In general, the attorney-client privilege only protects communications in which one has a reasonable expectation of privacy.¹⁷ Although intercepting cellular and cordless telephone calls is illegal, as noted above, it is frequently done, oftentimes unintentionally. Thus, it is questionable whether there is a reasonable expectation of privacy during a wireless telephone conversation. Indeed, the Georgia Court of Appeals has held that "cellular telephone users have no justified expectation of privacy."¹⁸ The Court noted that cellular telephones transmit "FM" radio waves "for anyone to hear."19 The analysis has been the same for cordless telephones.²⁰

Acknowledging the limited privacy of cellular and cordless phone conversations, several bar associations have cautioned that wireless telephone conversations may not be protected by the attorney-client privilege.²¹ In Arizona, Ethical Rule 1.6(a) imposes upon attorneys the duty to maintain the confidences of their clients.²² Citing this rule (along with Ethical Rules 1.3 and 1.4), the State Bar of Arizona suggests:

A lawyer may use a cellular or cordless telephone to contact a client or opposing counsel, but should exercise caution when discussing confidential matters as there is a genuine risk that a third party will intercept the information. Just as a lawyer would not discuss sensitive matters in a crowded restaurant, the lawyer should refrain from having such discussions when using a portable telephone.²³

The New York City Bar Association has gone one step further, suggesting that attorneys "consider taking steps such as encryption or scrambling of signals sufficient to ensure the security of such [privileged] conversations."²⁴ At the extreme, one commentator recommends imposing upon attorneys a duty to inform clients that cellular phone conversations may jeopardize the attorney-client privilege.²⁵ This commentator also argues that a failure to inform the client of such may be grounds for malpractice.²⁶

Some bar associations have issued equally stern warnings about the use of cordless phones. The Washington State Bar Association issued an opinion stating that "with respect to cordless phones, the Rules of Professional Conduct (RPC 1.6) requires that the lawyer advise the client that the conversation may not be confidential and give the client the option of conducting the discussion at a more secure time and place."²⁷

There is obviously no shortage of ethics opinions and court decisions to the effect that there is at best a questionable expectation of privacy when cordless and cellular telephones. Many have concluded from this that there is therefore no attorney client privilege for wireless communications. Certainly, a court facing this issue could deem the privileged waived for this reason alone. Recently, though, several authors have argued — quite persuasively — that because it is illegal to intercept, disclose or use information gained from the interception of cordless and cellular communications, the privilege cannot be waived, notwithstanding the fact that interception is commonplace and relatively easy.²⁸ Case law, though, has apparently not yet addressed this argument.

Thus, although strong arguments exist that the attorney-client privilege applies, neither the statutory ECPA nor the codified and common law of the attorney-client privilege provides a clear protection for communications over wireless media. Fortunately, a new trend may be developing which will help clear the air — express legislative action.

California Evidence Code

To date, California is the only state that has addressed this problem by clearly stating that cellular communications are protected by the attorney-client privilege. California’s attorney-client privilege statute provides:

a communication between a client and his or her lawyer is not deemed lacking in confidentiality solely because the communication is transmitted by facsimile, cellular telephone, or other electronic means between the client and his or her lawyer."²⁹

Unfortunately, no other state — including Arizona — has yet issued such an express legislative solution to this problem.

Conclusion

Although cellular and cordless telephones are popular and convenient communication tools, attorneys should be careful with respect to what and with whom they communicate over these wireless media. The growing trend appears to be to treat cellular and cordless communications as privileged communications, as California has expressly done, despite the relative ease and frequency of cellular and cordless interceptions. However, for lawyers practicing in Arizona, it is not yet clear whether the ECPA privilege provision or the attorney-client privilege applies to these communications. Until it does, or until there is sufficient case law providing for such protection, attorneys concerned about the privileged nature of their wireless communications should consider their cellular and cordless conversations unprivileged. The attorney who wants to use a wireless telephone but who is nevertheless concerned about preserving the privilege ought to consider the following precautionary measures:

(1) Caution clients that the conversation is over a wireless media and briefly advise the client of the possible effect of such on the attorney-client privilege;
(2) Consider purchasing and using an encryption device, and
(3) Limit the use of a wireless telephone to the mundane and reserve discussions of particularly sensitive and confidential topics for land-based lines.

Heidi L. McNeil is a partner with Snell & Wilmer, concentrating in business litigation and Indian law.

Robert A. Henry is an associate with Snell & Wilmer, concentrating in litigation and environmental matters. Special thanks to William Cegelka, third-year law student at the University of Kentucky, for his research assistance.

ENDNOTES:

1. William G. Flanagan and David Stix, Telephone Voyeurs, Forbes, Sept. 30, 1991, at p. 172.
2. United States v. Carr, 805 F. Supp. 1266, 1269-70 (E.D.N.C. 1992).
3. The newer digital cellular phones operate a bit differently and, at least as of this writing, are more difficult to intercept than standard cellular phones. See generally Jose L. Nunez, Regulating the Airwaves: The Governmental Alternative to Avoid Cellular Uncertainty on Privacy and the Attorney-Client Privilege, 6 St. Thomas L. Rev. 479 (Spring 1994).
4. An Inquiry Into the Use of the Bands 825-845 MHZ and 870-890 MHZ for Cellular Communications Systems; Amendments of Parts 2 and 22 of the Commission’s Rules Relative to Cellular Communications Systems, 86 F.C.C. 2d 469 (1981).
5. United States v. Carr, 805 F. Supp 1266, 1269-70 (E.D.N.C. 1992)
6. 18 U.S.C. 2510, et seq.
7. 18 U.S.C. § 2511(1).
8. 18 U.S.C. § 2515.
9. 18 U.S.C. § 2515.
10. "Wire communication" is defined as "any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications for communications affecting interstate or foreign commerce and such term includes any electronic storage of such communication." 18 U.S.C. § 2510.
"Electronic communication" is defined as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photo electronic or photo optical system that affects interstate or foreign commerce, but does not include (a) any wire or oral communication; (b) any communication made through a tone-only paging device; or (c) any communication from a tracking device (as defined in section 3117 of this title)." 18 U.S.C. § 2510.
11. Schubert v. Metrophone, Inc., 898 F.2d 401, 404 (3d Cir. 1990).
12. Id. at 405 (quoting House Report No. 647, 99th Cong., 2d Sess. at 32 and Senate Report No. 541, 99th Cong., 2d Sess. at 11, reprinted in 1986 U.S.C.C.A.N. 3555, 3565).
13. United States v. Carr, 805 F. Supp.1266, 1270 (E.D.N.C. 1992).
14. In re: Askin, United States v. McNulty, 47 F.3d 100, 103 (4th Cir. 1995) (quoting 18 U.S.C.§§ 2510(1) and 2510(12)(A) (1986)).
15. 18 U.S.C. § 2510 (1994 amendments eliminating the exclusion of "the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit" from ECPA protection).
16. See Askin, 47 F.3d at 103 (4th Cir. 1995); Chandler v. State, 680 So.2d 1018 (Ala. Crim. App. 1996).
17. McCormick On Evidence, S74, at 176 n.5.
18. Salmon v. State, 426 S.E.2d 160 (Ga. Ct. App. 1992); but see United States v. Kim, 803 F. Supp. 352, 361 (D. Haw. 1992) ("[f]ollowing the passage of the ECPA, cellular telephone communications have enjoyed the same privacy protection as standard telephone communications").
19. Id.
20. See, e.g., McKamey v. Roach, 55 F.3d 1236, 1238-39, Askin, 47 F.3d at 103-04, Tyler v. Berodt, 877 F.2d 705, 706 (8th Cir. 1989), cert. denied, 493 U.S. 1022 (1990); State v. Smith, 438 N.W.2d 571, 575-76 (Wis. 1989); State v. Delaurier, 488 A.2d 688, 694 (R.I. 1985). Nevertheless, some courts have found that cordless phone users do have a reasonable expectation of privacy. See, e.g., United States v. Smith, 978 F.2d 171, 180 (5th Cir. 1992) (noting that "improved cordless technology" may lead to reasonable expectation of privacy).
21. See, e.g., Opinion 215 (July 21, 1995), North Carolina State Bar Association; Opinion No. 1994-11 (Nov. 7, 1994), Association of the Bar of the City of New York; Ethics Opinion No. 90-44 (May 24, 1991), Washington State Bar Association; Opinion No. 90-7 (1990), Illinois State Bar Assoc. Comm. on Professional Ethics.
22. Arizona Rules of Professional Conduct ER 1.6(a) (1983). "A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation."
23. Opinion No. 95-11 (Dec. 6, 1995), State Bar of Arizona.
24. Opinion No. 1994-11 (Nov. 7, 1994), Association of the Bar of the City of New York.
25. Anthony Higgins, Professional Responsibility — Attorney-Client Privilege: Are Expectations of Privacy Reasonable for Communications Broadcast via Cordless or Cellular Telephones? 24 U. Balt. L. Rev. 273, 275 (1995).
26. Id.
27. Informal Opinion 91-1: Confidentiality and Use of Cordless Telephones, Wash. State Bar News (Oct. 1991).
28. See, e.g., David Hricik, Confidentiality and Privilege in High-Tech Communications, The Professional Lawyer (Feb. 1997); Peter R. Jarvis & Bradley F. Tellam, High-Tech Ethics and Malpractice Issues, The Professional Lawyer (1996 Symposium Issue); see also Albert Gidari, Jr., Proprietary Rights: Privilege and Confidentiality in Cyberspace, The Computer Lawyer (Feb. 1996) (agreeing that illegality of interception protects cellular communications; disagreeing that privilege applies to cordless communications because accidental interception of cordless communications is not illegal).
29. Cal. Evid. Code § 952.