Is Online Technology Compatible With Attorney-Client Privilege?

lawMany attorneys are hesitant to adopt online technology because of fears that doing so might violate legal ethics. They may go so far as refusing to add a basic online contact form on their website, or they may resist new platforms such as online case management systems that let them remotely share files with clients. However, there are no actual prohibitions on technology as long as it is set up securely.

Why Attorneys Resist Technology and Change in General

The legal field is based heavily on precedent. If state bar associations have ruled that an attorney was allowed to take a particular action in the past, attorneys can safely assume they can take that action today. Attorneys are comfortable using traditional communication methods, such as telephones and mail, because they know exactly what they can and cannot do.

When it comes to adopting new methods, especially emerging technology, there is little to no precedent available. If an attorney adopts technology and her client files an ethics complaint about it, the attorney has little idea if the complaint will be resolved in her favor or if she could receive sanctions including possible suspension of her law license. Almost like penguins testing the water for sharks, attorneys want to see other attorneys take the plunge first before adopting something new.

Sharing Information With Third Parties

One of the key concepts of attorney-client privilege is that all communications must be confidential. If information is shared with a third party, or if the communication could be seen or heard by third parties (such as posting on a public message board or talking loudly in a coffee shop), the privilege is lost.

The privilege isn’t limited to one attorney and one client, though. Privilege is not lost when employees of a law firm, either attorneys or support staff, discuss what a client told one of them. Privilege is also not lost if a client is a business and the employee who talked to the attorney tells the other employees what they discussed.

The problem in online technology is whether the hosting provider is considered part of the law firm or an outside third party. This can be answered with a carefully designed contract that defines the hosting provider’s role as a vendor of the law firm and emphasizes the need to preserve confidentiality.

In many cases, data can also be encrypted so that it is only viewable to the attorney and client and not to the hosting provider.

Security Breaches

The other side of confidentiality is the possibility of accidental disclosure. Attorneys fear that if an email is intercepted or a website’s security is breached, privilege may be lost. The two things that must be considered are intent and reasonableness.

Intent is whether the communication was meant to be private. Was it similar to a loud conversation in a crowded courtroom or more like a whisper into the attorney’s ear?

The concept of reasonableness says that not every interception or possibility of interception breaches attorney-client privilege. Instead, only reasonable measures to preserve confidentiality must be taken. For example, if an attorney takes his client to a corner of the courtroom for a whispered conversation, privilege isn’t lost if the opposing attorney sneaks up behind them to eavesdrop.

The same concepts apply in the online space. Technology doesn’t need to be 100 percent hacker proof, but just reasonably secure against the most common security risks.

Partnering with a technology provider with a strong reputation for data security can meet this reasonableness standard and allow attorneys to use online technology to grow their law practice without fear of breaching attorney-client privilege. If you have questions about implementing technology at your law firm, contact us.