One of Anglo-American jurisprudence’s oldest legal concepts, attorney-client privilege, faces a paradigm change given today’s accelerated transformation of the work community. In order to preserve attorney-client confidentiality, technical innovation, while offering quicker and more reliable connectivity and efficiency, has posed an enhanced risk environment. Specifically, with the pace and sophistication of the current business environment, the maintenance of secrecy, a core tenet of this right, is placed to become an unintentional and overlooked casualty.
Given this transition, it is anticipated that in-house counselors would be mindful of an already complicated legal doctrine when managing numerous cloud sharing platforms and other automated forms of communication. In order to protect privilege and retain secrecy in a new business setting, here are few best management considerations for in-house lawyers.
The right of solicitor-client is one of the most complex yet most valued fields of law practice and covers oral and written correspondence to, from or from an attorney in order to obtain or accept legal advice. The right of attorney-client safeguards those correspondence from access to third parties. All correspondence must be private between an attorney and a client and made for the purpose of receiving or offering legal advice in order to apply for this privilege. If these three elements are not satisfied, coordination is not preferred. The general aim of this right is to facilitate open dialogue and knowledge exchange, without fear of exposure to unintended persons, in order to seek legal advice.
The enforcement of privilege, especially given jurisdictional considerations, is not a clear-cut procedure. For instance, the application of privilege is much more difficult for international companies, where the idea of in-house therapy privilege is either restricted in certain countries or does not apply at all (and engagement of outside counsel, such as a hired firm, may be needed to help preserve the privilege in other jurisdictions).
Confidentiality is a crucial factor for preserving the privilege, considering the nuanced nature of the enforcement of attorney-client privilege. In fact, oral or written correspondence must be kept secret for the privilege to be extended. If the content of the correspondence is revealed or available to internal personnel not personally interested in the matter or persons outside the company, the right may be extinguished.
Society has traditionally recognized the need to maintain a balance between, on the one hand, protected conversations in the workplace and, on the other hand, public involvement in successfully prosecuting corporate malfeasance. Technological innovation provides a complicating aspect that causes the risk environment of privilege to change and develop considering new means of interacting, like tweeting, agile channels for project management, instant messaging and visual contact networks.
For example, certain states explicitly expect lawyers to know how their cloud service provider manages storage and security and consider communicating with an expert if the lawyer does not have the necessary expertise. If you store it in the cloud, ensure that it is kept safely at rest and, if possible, in transit with encryption. You should place access limits on the information as well. For reported meetings and transcripts, such as inside Zoom, this tip applies in particular. Bear in mind that these methods, not privileged interactions, are intended for simple teamwork. This tip also refers to records and memos held on business computers, limiting password entry, etcetera. These can only be guided on a need-to-know basis to anyone.
Communications in open space settings should be considered by in-house lawyers. Generally, open spaces are not deemed private, but retain such correspondence if required for closed meeting spaces/conference rooms.
In addition, attorneys should ensure the messages are delivered to the appropriate recipients. Unnecessary people should not be involved in classified communications; if they do, it will be more difficult to prove the privilege exists.
The legal system is unable to keep up with such accelerated technical growth, considering the ease and efficiencies offered by many channels available today.
Bring-your-own-device policies on the surface tend to minimize business expenses, they present a variety of hidden costs, including concerns relating to attorney-client privilege. Businesses have less control over the equipment in a BYOD setting and are restricted in their ability to create sufficient security. In addition, companies have less control over dissemination of information and how it is distributed and stored on private computers, which is inherently troublesome from the point of view of secrecy and attorney-client privilege.
If you are concerned about keeping such documents private, you can encrypt it both in transit and at rest. Encrypting in transit protects against a typical threat: the “man in the middle attack.” This is essentially an eavesdropping hacker version. Encrypting at rest safeguards against unintended leakage. Most legislation on notice of breach of state data include an exemption to breaching data.
In addition to encryption, correct access controls and logging protocols should also be considered. For eg, consider Harleysville Ins. Co. v. Holding Funeral Home, Inc., in which an online file-sharing site was used by the complainant to share information with other people, including the lawyer. Like a password requirement, the appellant did not use a control to prevent access to the files, leaving the files vulnerable and available by opposing counsel. In this case, the inability of the complainant to control access to the files resulted in an inadvertent, unintentional exposure and thereby waived attorney-client privilege.
The adage “if you want to go quickly, go alone; if you want to go far, go together” refers to the right of the attorney-client and its evolution alongside accelerated technical development. In order to manage this changing area and ensure the prudent use of technologies and a proactive, conscientious approach to the secrecy protocol, legal professionals should consider obtaining expert advice. Although these tips aren’t an exhaustive list, incorporating these considerations of best practice will help minimize risks involved with negotiating the organization’s ethical quagmire of attorney-client privilege.