On a daily basis, corporate counsel and their clients communicate confidentially. Assumptions regarding what is and will remain attorney-client privileged are included in these interactions. Attorney-client privilege, one of the oldest legal concepts in Anglo-American jurisprudence, is facing a paradigm shift with today’s rapid work culture advancement. While technological innovation has allowed for faster and more effective communication and production, it has also increased the risk of losing attorney-client privilege. Given the speed and complexity of today’s corporate environment, maintaining confidentiality, which is a core element of this privilege, is positioned to become an accidental and unrecognised casualty.
As a result of this shift, in-house legal counsel must become more knowledgeable about an already complex legal system while navigating a range of cloud collaboration programmes and other types of electronic communication. In-house counsel should review the following recommended practices to preserve privilege and protect confidentiality in a modern business setting.
Attorney-Client Privilege & In-House Counsel
The attorney-client privilege protects oral and written communications to, from, or with an attorney for the purpose of asking or receiving legal advice. It is one of the more sophisticated but well-respected areas of legal practice.
Certain communications are protected from disclosure to third parties under the attorney-client privilege. These conversations must be confidential, between an attorney and a client, and made for the purpose of getting or providing legal advice to qualify for this protection. If these three pieces of criteria aren’t met, the communication isn’t considered valuable. The overarching goal of this privilege is to encourage open communication and information sharing in order to seek legal counsel without fear of unintentional exposure.
Best practices for legal professionals
Attorney-client privilege is still one of the more difficult and subtle aspects of legal practice. The corporate entity – with employees, business units, and governing boards – adds to the intricacy of this privilege for corporate counsel. The fact that in-house counsel serves as both a trusted legal expert and a business advisor further complicates the matter.
Despite the fact that there is minimal case law specifically dealing with privilege and communication platforms or tools, established privilege rules apply. Courts use the modified subject matter test to evaluate whether a communication is protected by the attorney-client privilege. When a corporate employee communicates with the corporate attorney about legal advice, the subject matter is within the scope of the employee’s duties, the employee’s superior incentivises the employee to make the request, and only those who need to know the contents of the communication receive it, meaning the communication is protected.
Take time to educate yourself
Model Rule 1.1, which stipulates that a lawyer “should keep aware of changes in the law and its practise, including benefits and hazards connected with applicable technology,” has been approved by the American Bar Association and various states. As a result, lawyers are expected to be aware of the hazards and benefits of technology and to make judicious use of it.
BYOD (bring your own device) policies can be written to provide some protection against certain dangers. The usage of a BYOD smartphone or tablet by employees blurs the barrier between personal and professional life. In comparison to a thumb drive, a BYOD device can readily keep trade secrets on the device itself or via a cloud storage service. The expectation of privacy of an employee is at the heart of the legal issue. The most forward-thinking businesses will create a detailed, customised BYOD strategy that works in tandem with existing security measures. Employees who use a BYOD smartphone or tablet in conjunction with business computers would have to sign away their expectation of privacy in more restricted regimes.
Bring-your-own-device rules appear to reduce company expenditures on the surface, but they come with a slew of hidden costs, including issues with attorney-client privilege. Companies with a BYOD policy have less control over the devices and are constrained in their capacity to implement proper security.
Furthermore, businesses have less control over information access and how it is sent and stored on personal devices, which could be problematic in terms of confidentiality and attorney-client privilege.
Secure your communications
Counsel should make certain that communications are sent to the appropriate people. If irrelevant individuals are included in confidential communications, it may be more difficult to demonstrate that privilege applies. This approach applies to all kinds of communication, including new messaging tools such as Slack and agile project management platforms such as Jira and Trello. Despite the ease and efficiencies offered by many current platforms, the legal system is straining to keep up with such rapid technological advancement.
Salt is a secure communications solution that provides the best armour available to protect and secure information when communicating on mobile and desktop devices. As a proven safe haven network it provides the highest security available for both law firms and their clients. Mobile communications present major privacy challenges for the legal industry. Client-attorney privileged discussions, confidential merger/acquisition details, and integral legal strategies are just a few examples of mobile communications that have been intercepted and used to the perpetrator’s advantage.
The trend away from traditional face to face meetings with clients towards real-time messaging applications like WhatsApp and Zoom, risks highly sensitive information being shared on a less secure open platform. There are many media reports of security breaches on consumer-oriented platforms such as the recent Pegasus based attacks. If you fear a hack by malign actors who may be motivated by political, economic, personal, or ethical reasons, then it is essential to protect the internal and external communications of the firm from attack and exploitation, in a bid to protect the value content of the information, as well as your attorney-client privilege.
Overall, if you’re not certain that your message is only sent to people who need to know, consider modifying your communication delivery strategy to alleviate or reduce your concerns. Through a dedicated Management Portal, Salt allows you to create closed, private communication groups between you, your colleagues, and your clients. No uninvited users can contact you via Salt. No uninvited users can attack or hack you via Salt. You have control and can be seen to protect your clients and internal communications.
At Salt Communications we work with attorneys of all sizes all around the world to enable them to have secure, confidential discussions wherever they are, at any time.
To discuss this article in greater detail with the team, or to sign up for a free trial of Salt Communications contact us on email@example.com or visit our website at saltcommunications.com.
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 is headquartered in Belfast, N. Ireland, for more information visit Salt Communications.