Law firms face technological minefield to preserve legal professional privilege- true or false?

October 8, 2015

True. But not entirely, as legal practice managers can turn the answer around. Let me explain, and then you can make up your own mind.

Electronic communications could pose a risk - true

Lawyers and their clients communicate frequently. In this world of advanced technology, these communications no longer take place just through good old letters or via a simple phone call. They now take place largely through emails and sometimes even via text messages or other messaging services such as Skype. Personally, I had the experience of one client asking me a legal question over a group WhatsApp channel. I had to (gently!) educate this client on a number of things… I will come back to education shortly. The point I want to make here is this - electronic communications are thought by many to put at risk the confidentiality of legal communications between a lawyer and a client. Modern communications technologies have made what once would have been limited disclosure in a closed environment to now easily available to pretty much anyone who has an online presence.

Technology could be a help but it could also be a hindrance - true

For the legal profession, it is true that there is a vast array of technology that can be used for lawyer-client communication. It is also true that clients now expect to be able to communicate via electronic means and even via social media. In this light, on one hand, risk of a loss of confidentiality is a concern. However, on the other hand, there are steps that can be taken to ensure that Legal Professional Privilege (LPP) is protected and the risk of a loss of confidentiality is managed and mitigated. While you may not have considered this before, just like many other things, legal practice managers can make a valuable contribution here.

Clients should be able to communicate with lawyers in confidence - true

There is little doubt that we would all agree on this point - that clients should be able to consult their lawyers in complete confidence without any fear of having to disclose any communications between them at a later date. This is pretty much where the idea of privilege came from.

In a nutshell, LPP protects confidential communications between a lawyer and client from disclosure if they are made for the dominant purpose of seeking or providing legal advice, or for use in existing or anticipated legal proceedings. Generally, once LPP has been established, it will protect all lawyer-client communications until such time as it is waived.

LPP could be waived inadvertently - true

It is important to remember that a waiver can be “granted” inadvertently! Often, in-house lawyers (for example) would try to manage this risk by limiting as much as possible the circulation of communications within the organisation with whom they are employed.

The introduction of electronic and Internet technology has affected every facet of human existence. The practice and business of law have not escaped the influence of the Internet, and in particular, electronic communications and social networking. As with other industries, clients are looking to connect with legal services online. Undeniably, legal practices of all kinds and all sizes are making efforts to attract new clients as well as retain existing clients via social media, such as Facebook, MySpace, Twitter, and LinkedIn. The use of blogs has also become popular.

These new technologies are not just used to post business profiles, share information, and market services; they are also used as tools when conducting investigative research, particularly in family and criminal law. Even court orders have been served by law enforcement officers via social media. For example, did you know that Victoria Police uses social media for a number of its functions and activities? By way of example, where a Magistrate is satisfied that it is not reasonably practicable to serve a copy of an intervention order, the Magistrate may make an order for the document to be served in another manner, and this includes service via Facebook! You can read more about this here.

This use of social media has prompted regulators around the world to take a long, hard look at the practical and ethical implications of such use in the legal profession. With regards to LPP, back in 2007, the Australian Law Reform Commission has already noted that technological advancement means that claims of privilege would increase, and confidentiality and security are primary concerns. You can read more about the ALRC's comments here.

Indeed, there are many ways clients can reveal privileged communications with their lawyers without even meaning to, thereby inadvertently waiving LPP. There are so many forms of communication through which LPP could be under threat of being waived by accident, such as in chat rooms, on blogs, on bulletin boards, in emails and attachments, and on websites.

As we all know, anything that is put in the public domain of the Internet is not confidential. This means, for example, if a Facebook “Friend” asks a legal question on a lawyer's webpage, and the lawyer answers that question, then the lawyer might be inadvertently forming a professional lawyer-client relationship that comes with a number of professional obligations. Will that communication chain be subject to LPP? Well, that analysis is not one for us to tackle right now, but it is food for thought! It is fair to say that whether and what communications would be privileged in such a case and as the matter progresses would need to be carefully determined and managed.

Legal practice managers can help preserve and protect LPP - very true!

So, there is definitely an increased challenge in managing and maintaining LPP in today's technological society. But where many believe this challenge is hard-met, the reality is that along with technological advancement comes ways to better preserve and protect LPP. And guess what - like many other things legal practice managers can play an important role in, this is another area where legal practice managers can work their magic and make a real difference.

The first step in protecting LPP is education. Let's start with education relating to the movement of electronic information. Legal practice managers can educate lawyers, and help lawyers to educate their clients, so as to manage (or in some cases, avoid) the disclosure of confidential information, whether intentional or unintentional. How do I do this in practice, I hear you ask? A place to start could be to establish policies and procedures for the firm, such as a rule against using text messaging to communicate matter-specific instructions or information.
Legal practice manages can also help put in place strict control over distribution of all communications, such as when to use or not to use “cc” and “bcc” when sending emails. Establishing best practices for digital communication and storage and circulating regular reminders on how to take care with the use of mobile devices and social media are also worth considering.

On the client front, legal practice managers could help train clients, say by way of newsletter, to take greater care for what is spoken or published. One tip I came across is, as a client, never say in any public forum that you have legal advice or provide details of any advice received.

So, let us go back to this question: law firms face technological minefield to preserve LPP - true or false?

With the intervention of legal practice managers, the answer could be false. With the assistance and support provided by legal practice managers, lawyers not only could develop a more solid grasp of advancing technologies, but they could also have guidance in the best ways of using them to their professional advantage and not to their detriment. Don't forget technology also provides solutions that will ensure higher levels of security and confidentiality, which of course is helpful!

Karen Lee, Legal Know-How. ALPMA article for SAI Global. 7 October 2015.