Email Security, Websites and the Use of the Internet
1. This note is to give guidance to individual Barristers and
Chambers as to their use of (a) emails and (b) internet publishing
in their professional practice.
A. Email Security
2. Lack of Security
The use of email for the transmission of instructions,
correspondence and court orders is becoming the norm. Email
is not completely secure.
3. Consequences for Barristers
Barristers are reminded of their obligations under Para 702 of
the Code to preserve client privilege and confidentiality.
The possibility cannot be excluded that the Courts will impose
liability upon professionals for negligence for losses arising out
of the sending of emails of confidential, commercially or
litigation sensitive, or privileged communications in an
unencrypted or unprotected form which are misdirected or published
to the disadvantage of the owner or intended recipient.
Liability may be imposed more readily if the systems for encryption
are free, or inexpensive, and readily available.
4. Confidentiality Notices
It is likely to be sensible to include as a matter of course in
all email communications a confidentiality/privacy/privilege notice
at the top of the email as appears in faxes. Example:
"From: A. Barrister,
Phone and Fax numbers
To: [Name and address of Recipient]
Privacy and Confidentiality Notice
This message is confidential and intended solely for the person
to whom it is addressed. It may contain privileged and
confidential information. If you are not the intended
recipient you must not read, copy, distribute, discuss or take any
action in reliance on it. If you have received this
information in error, please notify me or my clerk as soon as
possible on the above telephone number. Thank you."
5. Track Delivery
In the case of particularly important emails consideration
should be given to the use of a tracking system to ensure delivery
to the correct address. Chambers should also take care where
incoming emails are received centrally that they are transmitted to
the correct person in chambers.
6. Care in Clicking
Great care should be taken in using an automatic address book to
ensure the right recipient's name is highlighted as it is very easy
to click on an adjacent name by accident and not notice.
(Also if networked, it is easy to click on "Send All", rather than
7. BMIF Cover
A transmission which goes astray or which is the subject of
hacking will be covered by BMIF as if it was misaddressed in the
post or document exchange; c.f. fax transmissions.
8. Virus Checking
Regular updating of virus checking is essential, particularly
with increasing usage of the internet. Networked systems are
especially vulnerable and the damage may be many times greater than
on an individual personal computer. Daily updates can be
obtained from commercial providers of software.
B. Internet Publishing
The possible types of internet publishing by Barristers are:
(i) Information about Chambers, e.g. on a Chambers' web site
(ii) Information about individual members of chambers
(iii) Legal information in the form of books, articles, lecture
transcripts or notes, case and statute commentaries and up-dates
and procedural guidelines.
(iv) Advice - generic, specific or interactive advice.
These may be published on the internet by:
(a) open access, with or without a fee, or
(b) by password access - for a fee or under some other
contractual or quasi-contractual arrangements.
10. Main Considerations
In all internet publishing it is important to consider the
(i) What is the published material? Is it business information
or legal information that is capable of creating a liability for
(ii) If the information may be case-specific advice, is the
recipient a client? If so is he a solicitor, foreign lawyer
or does he have licensed access?
(iii) Is the activity in compliance with the Code of
Conduct? If the activity is giving case-specific advice
without a professional retainer it will be in breach of the
(vi) Is the activity covered by BMIF? BMIF does not cover
liabilities arising out of legal authorship, and activities outside
the scope of the Code may not be covered by BMIF as part of the
(v) If the material constitutes advertising, does it comply with
the Code, and is it legal, decent honest and truthful?
11. Chambers' Web Site
Remember that a set of Chambers is not a legal entity.
BMIF does not cover a set of Chambers as such, although BMIF cover
afforded to individual barristers may apply in respect of their
potential liability for Chambers' publications. Chambers'
publications are regarded as marketing. The web enables
Chambers' publications to be available not just to English
solicitors who are familiar with the concept of a set of
barristers' chambers, but to the whole world - most people are
unaware of the nature of a set of chambers. It is therefore
very important to ensure that Chambers cannot be perceived by
members of the public (or commercial entities) to be offering legal
services or advice on which they can rely to order their
A Chambers' web site, or other internet dissemination of
information about Chambers should therefore explain:
(i) the legal status of Chambers,
(ii) the fact that services are provided by the members of
chambers as individuals,
(iii) if any page accessed through the web site includes any
articles, case notes or other legal information, as opposed
to merely business information such as is found in the legal
service directories, then it should include a disclaimer.
(i) Chambers -
"The Chambers of Rumpole QC," or "Vector Chambers" (as the case
This web site is produced by [the Chambers of Rumpole QC] a set
of barristers' chambers. Chambers has no collective legal
identity of any kind; all barristers practising from a set of
chambers are self-employed individuals. By agreement of the
barristers in these Chambers, this web site has been prepared for
information purposes only. [Any views expressed, or comments
made on the law in an article, commentary or note on this web site
are not necessarily the opinions of any member of Chambers other
than the author.] This web site was last up-dated on
The information and any commentary on the law contained on this
web site is provided free of charge for information purpose
only. Every reasonable effort is made to make the information
and commentary accurate and up to date, but no responsibility for
its accuracy and correctness, or for any consequences of relying on
it, is assumed by any member of Chambers. The information and
commentary does not, and is not intended to, amount to legal advice
to any person on a specific case or matter. You are strongly
advised to obtain specific, personal advice from a lawyer about
your case or matter and not to rely on the information or comments
on this site. [By clicking on I agree, you accept that you
have no right or recourse against the providers of information on
this web site.]
12. Individual Barrister's Web Sites
The crucial point is that a Barrister may only give advice to a
professional client; the guidance above in relation to a Chambers
web site applies. If he or she advises a person who is not a
professional client as defined by the Code of Conduct he or she
will be in breach of the Code. Hitherto the publication by a
barrister of legal information, case summaries or commentaries or
other legal authorship has tended to be indirect, through a legal
publisher in an article or book. Internet publishing creates
a direct relationship with the individual recipient.
Conventional legal authorship falls outside the scope of "Legal
Services" as defined by the Code, and any liability arising
therefrom is not covered by BMIF. Care must be taken to
ensure that any such authorship cannot give rise to the assumption
of responsibility towards the reader. If any legal
information given on a web site could be taken to be advice -
for example a commentary which gives examples which may be similar
to an accessor's case - then a disclaimer such as suggested above
should be used.
13. Linked Web Sites
If a Chambers' or individual barrister's web site may be
accessed through a link (for example from a firm of solicitors)
care should be taken to ensure that liability to that site visitor
(for example the solicitor's client) is not created. (It is
also contrary to the Code to take money for a referral, or
introduction fee, which may arise in a link).
14. Three Examples
(i) A CPR alerting service. A Barrister might have a
personal web site with a passworded area giving an alerting service
on new developments, cases etc with commentary on the CPR.
Because it is passworded he knows who uses it and sends them email
updates. If he did this through a conventional publisher they
would charge for it, and pay him a fee as an author. If the
consumers are not professional clients and are able to interact so
as to receive advice on specific issues, then this would be in
breach of the Code. Moreover, if a fee is charged to access
the site then a contractual relationship is created which may
attract stricter liability rules than a negligence claim, and it is
unlikely that any disclaimer would assist. If the information
is incomplete, inaccurate or out of date this may give rise to a
claim in relation to which the barrister may wish to arrange
insurance as an author, independently of his cover with BMIF.
(ii) A questioning interactive web site. A barrister may
have an interactive web site which asks questions of the person
entering the site. A general advice is provided at the end of
the session, depending on the answers given by the accessor.
This is very likely to be case specific, and therefore in breach of
(iii) Bank internet service with legal advice. A bank offers a
subscription internet service where subscribers have an
account. Part of the material is legal information written by
barristers who write a synopsis and a detailed guide. The
synopsis is free, but when the detailed guide is downloaded the
bank collects a fee, part of which is passed on to the Barrister
author. If this is advice and not to a professional client,
then it is in breach of the Code. There will also be a
contractual liability to the Bank if it is sued by the
consumer. In both cases claims may fall outside the scope of