Sunday, September 27, 2009

Spam Art and Solicitor-Client Confidentiality

I must confess to at least a grudging admiration for the unyielding, malicious genius demonstrated by spammers and black-hatters in their efforts to tempt - or frighten - unwitting recipients into opening virus-laden emails.

Their ability to ride the waves - in real time - of the hot trends, fashions, issues and anxieties of the the day to grab attention would impress any marketing professional.

Perhaps the spammer's subject line will come to be seen as an underground art form, some day.

Less graceful than some spam, this virus-infected message, purporting to contain a Notice of Underreported Income from the IRS, was filtered by my ISP this afternoon:

Of course, here in Canada, the receipt of threatening-looking email from the IRS strikes little fear in the heart. We know it is fake. In America, however, I'd think this email might have fairly high click-through and viral-payload delivery percentages

On a related note (as to the issue of whether I should even be writing about this email), I've been having a good discussion today with my friend Michael Carabash about whether solicitor and client confidentiality attaches to unsolicited spam email of a professional nature received by lawyers.

My take is that it generally does.

We may not owe a duty of care to unsolicited spammers, but we generally do owe a duty of confidentiality with respect to all emails received at our professional addresses where it would be reasonable to assume confidentiality is expected. Where the email contains what may be a bogus "request for legal representation" that could well be the introductory salvo in an attempted fraud (we get these suspicious emails quite frequently), the issue becomes more complex.

Nonetheless, I'd still come down uncompromisingly on the side of maintaining confidentiality as to those who contact us - absent compelling, if not absolute, proof of fraud.

I've published the identifying "IRS" information above because of its "no-reply" email address, which eliminates any concern that the email could be from a real person, or alternatively, be a spoof of a real person's identifying information. As well, it does not appear to be related to legal services at all.

Otherwise, I would not ordinarily consider publishing or disclosing it.

- Garry J. Wise, Toronto

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