One of the most significant functions of the use of a counsel is the attorney-client privilege. The immunity prohibits communications between clients and their attorneys from being discovered, in most cases. The conversation is immune from discovery as long as the conversation was meant to be confidential and is not in favor of a felony (and a few other rules) and the counsel should not reveal the conversations they have held with their client. There are a few exceptions, but written correspondence such as emails, e-mails, and instant messages still usually have this protection.
Inadvertent leakage of privileged or proprietary information is better than ever if you are not vigilant, with so much more attorney-client contact taking place via e-mail or text messaging, and cloud storage platforms being used to exchange data. The lawyer and/or customer can unintentionally waive their right with the simple click of a button. Also if the disclosure was by accident, this will happen.
Here are few suggestions to further minimize the chances of incorrect disclosure. If not detailed, the following tips will help launch a company-wide dialogue about how to discourage accidental sharing of privileged information, or at least can demonstrate to the staff that it often becomes more difficult to secure as information becomes easier to disclose.
Send only to the lawyer and/or paralegal with whom you are dealing while interacting with your lawyer’s office and include only those who are absolutely required within the business. If you wish to keep the correspondence private, do not copy third parties to your counsel on e-mails as an inadvertent “reply all” e-mail can be more than just humiliating. Perhaps better, launch a new e-mail chain by forwarding instead of responding while corresponding with your solicitor, so you can identify the recipients. This is particularly valid if you are included in an e-mail from your client to either the opposition party or opposing counsel.
In certain e-mail systems, the auto fill function can save you time, but it may also accidentally waive the privilege. In the short second it takes to press “send,” e-mail addresses will be randomly filled easily with the same first name or related names and mistakenly delivered to the wrong user. It is very important to take a moment to ensure that your recipient list is right before your e-mail is sent. In your business e-mail software, you might want to consider disabling the auto fill option.
Forbid staff to use their own e-mail address for work or their personal contact e-mail for work. And they can never use a public computer to transmit information that is privileged or confidential. Making sure workers are mindful of keeping privileged job data separate from social media. This seems to be a no-brainer, but it does happen. There are several sites that can be lulled into forgetting about the need to secure data too casually.
Metadata is “data about data” which is invisible but recoverable on the face of a text. For example, metadata will show who wrote a document, when it was written, and most notably, what changes to the document were made and who made them. For another attorney or opposition side, this would be useful when it illustrates the whole procedure, including lost material and statements from or about lawyers.
In order to “scrub” metadata from records, automated applications exist. Clients are well recommended to send records that could contain privileged information to third parties using a metadata scrubbing software. Of course, as long as you don’t have third parties in the conversation, talking with your counsel is not a concern. To stop metadata leakage, the counsel should be able to clean and submit records.
Document sharing is simple for cloud-based providers. In a nutshell, cloud storage is data processed offsite, hosted by a third-party. Since attorneys need to keep anyone from seeing sensitive customer documents, access and protection concerns are posed when using these facilities.
Sharing details has been simpler and more convenient than ever in the modern world. This is a positive idea as long as you understand the risks as well as the rewards and set in motion processes to guarantee the privileged information is covered. Be wary and don’t blow it when it comes to attorney-client privilege.