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Are Lawyers breaking lawyer-client privilege by using consumer messaging apps?

An essential element of legal practice is the attorney-client privilege. It is a legitimate right that promotes open communication between lawyers and their clients and guarantees that clients feel comfortable speaking in a secure and confidential manner with their legal representation. Throughout court proceedings, discovery, and litigation, the attorney-client privilege is applicable in a number of situations. With the importance of this privilege during the course of legal matters, are law firms providing enough resources to the electronic communications between lawyers and their clients to ensure complete confidentiality and security with the information being disclosed?

Legally, communications between lawyers and their clients are shielded by the attorney-client privilege. The idea behind the rule is that in order to represent clients effectively and gather a larger scope of evidence, lawyers must have unrestricted access to their clients and promote free flow of information.

Lawyer-client privilege is impossible using insecure systems

In Comment 8 to Rule 1.1 Competency, the ABA’s Model Rules of Professional Conduct introduce the topic by noting that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” 

It makes sense that secure messaging is an important technology and, thus, a tool in modern legal practice given the prevalence of messaging. Business operations have changed since COVID-19, meaning there are still less face to face meetings, so the need to share information as freely as clients would in the same room needs to be promoted further. There is a definitive need for secure communication within law firms.

Legal organisations should be aware that conduct rules may restrict their use of unreliable communications systems that are intrinsically dangerous for the privacy of their clients. They may need to take action to protect data privacy in specific circumstances. As a result, if sharing sensitive information, both individuals and lawyers need to exercise caution. 

Risks to clients confidential information 

Maintaining the confidentiality of their client’s communications, information, and legal procedures is a fundamental tenet of lawyers’ professional conduct. When lawyers and their staff discuss client cases using consumer messaging apps, confidentiality might be violated.

As an example to some of the threats clients may face, the UK is one of the top surveillance nations in the world, allowing its police and intelligence services to monitor its own citizens. The Investigatory Powers Bill is the title of the applicable law. The bill advocates the legalising of the UK’s worldwide surveillance programme, which collects communications data from all over the world. If the government judges it necessary, UK government organisations can be given the authority to intercept information from chosen individuals, internet infrastructure, and even entire cities and organisations with nothing to stop them. From a lawyer-client perspective it is your responsibility to protect your client from their confidential information being tapped into, especially within firms who may be representing a client in a matter against a government body. 

Discovery Risks in Legal Proceedings

The risk of having your communications intercepted during a judicial process is increased by communications’ specific locations. If a consumer messaging platform stores the recordings of employee, lawyer or client conversations on servers located inside a certain legal jurisdiction, it is possible for the other side of a dispute to obtain access to them.

The majority of messaging applications don’t keep communications backups on their own servers, but most do provide users the option of using cloud services to sync their data across numerous devices. In the multi-device scenario of today, consumer messaging apps frequently come with this as a default option. As a result, interactions between colleagues, or lawyer-client may get recorded on distant servers and end up being searchable. It’s crucial for law firms to make sure communications and case-related data stay on their private network because of this risk. 

Protect your firm from breaking lawyer-client privilege 

A code of ethics that all legal professionals must follow involves safeguarding client confidentiality. The technology used by law firms is essential to upholding these moral commitments. Every element of the company’s technological infrastructure should have data privacy controls to ensure that sensitive data is kept private.

Data security is a fiduciary duty for attorneys. In addition to upholding ethical requirements, adopting secure technologies and strong data protection practices strengthens the ethics and professionalism of the legal profession. Undoubtedly, one of the most basic but frequently disregarded processes is also the most important to implement and use is having a secure communications system in place for the firm. 

For the utmost protection and security of information when communicating on mobile devices, Salt offers a secure communications solution made specifically for law firms and their clients in mind. Salt allows for iManage integration which was created to make it straightforward and safe for lawyers to ensure the highest level of compliance in parallel with complete confidentiality.

With taking all of the above into consideration, if sharing sensitive information, both clients and lawyers need to exercise caution. At Salt Communications, we advocate for everyone to use good technical habits, such as always using a secure communications platform and discussing with lawyers specifically what material should be kept privileged and confidential. By having this in place, law firms can be sure that they aren’t breaking lawyer-client privilege.

If you require any additional assistance, please contact our experts for more information at info@saltcommunications.com or to sign up for a free trial of Salt Communications or to speak with a member of the Salt Communications team.

Discover why law firms should consider Salt as a secure communications method. 

About Salt Communications 

Salt Communications is a multi-award winning cyber security company providing a fully enterprise-managed software solution giving absolute privacy in mobile communications. It is easy to deploy and uses multi-layered encryption techniques to meet the highest of security standards. Salt Communications offers ‘Peace of Mind’ for Organisations who value their privacy, by giving them complete control and secure communications, to protect their trusted relationships and stay safe. Salt Communications is headquartered in Belfast, N. Ireland, for more information visit Salt Communications.

References:

https://www.theaccessgroup.com/en-gb/blog/lgl-how-important-is-data-privacy-in-legal-tech/#:~:text=Lawyers%20have%20a%20fiduciary%20duty,professionalism%20of%20the%20legal%20profession.

https://www.lawyersdefencegroup.org.uk/confidentiality/

https://www.lawsociety.org.uk/topics/gdpr/lpp-and-client-confidentiality

https://www.ibanet.org/MediaHandler?id=6E688709-2CC3-4F2B-8C8B-3F341705E438&.pdf&context=bWFzdGVyfGFzc2V0c3wzMTQxNzd8YXBwbGljYXRpb24vcGRmfGg4NC9oZGUvODc5NzEyNTM0NTMxMC82RTY4ODcwOS0yQ0MzLTRGMkItOEM4Qi0zRjM0MTcwNUU0MzgucGRmfDk2OTg0ZjU1ZWE5OTJlM2ViZTc2MWEwMGE3Zjc4ZDQwOTYwMWYxMDU4OTNlMDc4YTJlODU0Y2I3OTBhZWQzY2U

https://www.law.cornell.edu/wex/attorney-client_privilege

​​https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence/comment_on_rule_1_1/ 
https://www.theverge.com/2016/11/23/13718768/uk-surveillance-laws-explained-investigatory-powers-bill

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