The internet has revolutionized the way we communicate and conduct business with one another. While the ability to send and receive documents, conversations, and other communications with the press of a button creates convenience, it also raises a few serious privacy concerns. For those in the legal world, email and other digital forms of communication require a second look at the ever important concept of attorney client privilege and the guidelines your practice uses to maintain it.
Encryption
Encryption is one of the easiest and most effective ways to protect attorney client privilege when it comes to digital communication. Encryption technology helps ensure that in the event your emails or documents do fall into the wrong hands, they will be extremely difficult, if not impossible to open and read. Take care to ensure that the data in emails, documents, devices, and even USB sticks are all encrypted and using the most up-to-date encryption technology available. As far as attorney client privilege email communication goes, this may mean using an email provider that offers email encryption.
An email plugin like Virtru can be very helpful in ensuring private emails between you and your clients remain that way. They integrate with a number of email providers, offer email encryption, have an unsend feature, allow you to disable forwarding, and allow you to set an expiration date for the emails you send. All of these features can go a long way in ensuring your privileged emails won’t fall into the wrong hands or be seen by the wrong eyes.
Educate
Breach of attorney client privilege due to human error is an extremely common, and can jeopardize your client’s case. Be sure your staff understands the guidelines you set out and how to safely use the technology they have. This includes, but is not limited to:
- Practicing proper password protocols
- Not using public WiFi networks
- Avoid installing third-party applications on devices
- Always use proper encryption
Along with these basic digital safety guidelines, everyone in your firm should carefully consider the information being included in email communications. Some highly protected case information may be better discussed over the phone or face to face. Just as important as educating your staff, you should educate your clients on the specifics of how attorney client privilege is upheld. If you don’t, they may unknowingly jeopardize the confidentiality of the information they’re sharing with you. In general, the rules governing attorney client privileged emails mandate:
- The communication must be between the client and the lawyer – communications extending beyond need-to-know parties can cause those emails to lose their privilege. Whether or not the email was mistakenly distributed to an outside party doesn’t make a difference — this can still put the privilege in jeopardy, so great care should be taken before clicking “Send.”
- The communication must be legal advice, rather than business advice – only legal advice is protected under the privilege. If the information in the email runs a fine line between being business advice versus legal advice, include something along the lines of “You’ve asked for my legal advice regarding…” — advise your clients to do the same. You can also selectively use the label “Privileged and Confidential” to further protect the communication.
- If a particular email loses its privilege for any of the above reasons (doesn’t fall under the category of legal advice, or is sent to outside parties), then all future and past communications pertaining to that subject may also lose their privilege. One slip up can put an entire subject in jeopardy of losing its privilege, so lawyers and clients should take great care to avoid these pitfalls at all costs.
Taking just a little extra time to educate your staff on the importance of your new guidelines can save you and your clients a lot of trouble in the future, and keep attorney client privilege intact.
Use a Cloud Backup Service
Of course, attorney client privilege doesn’t end once emails are sent or received, it is important that the content of your correspondence remains secure as its archived for record keeping purposes. This also applies to any attachments downloaded from client emails. Once the files are on your computer, encrypting them and storing them properly will ensure that they’re only seen by the appropriate users and no one else.
Using a local server or removable storage device to manage your records retention can be risky. Not only are you at risk of permanent data loss by keeping your data in one location on less than secure devices, but you’re leaving your data exposed to natural disaster, corruption, tampering, theft and accidental exposure as well. The only way to ensure both the safety of your case files and their confidentiality is to use a cloud backup service with the best available encryption technology.
When stored in the cloud, your documents and emails are safe from deletion, security breaches, device damage, and other potential data threats. And, if your office is ever hacked, the information will be unreadable to anyone without the encryption key. Maintaining attorney client privilege is of utmost importance to both your firm and the clients who depend on you. It is absolutely crucial this privilege extends to the practice of email and other digital communications between you and your clients.
