Legal Professional Privilege – A Technological Minefield?

By Karen Lee | Legal Know-How, June 17, 2016

As of June 2016, 95 decisions have been handed down by Australia courts that contained a reference to legal professional privilege (LPP).

LPP protects confidential communications between 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 the communication until it is waived.

There are many forms of communication through which LPP could be under threat of being waived by accident, such as in chat rooms, on blogs, in emails, on websites and via social media. Modern communications technologies have made what once would have been limited disclosure in a closed environment to now easily available to anyone with an online presence.

Nowadays, new technologies are not just used to post business profiles, share information and market services; they are also tools for conducting investigative research, particularly in family and criminal law. Even court orders have been served via social media. Did you know that the Victorian Police uses social media for some of its functions? For example, where a Magistrate is satisfied that it is not reasonably practicable to serve a copy of an intervention order, an order may be made to serve the document in another manner, and this includes service via Facebook! Read more about this here.

This use of social media has prompted regulators to review the practical and ethical implications of such use in the legal profession. Back in 2007, the Australian Law Reform Commission has already noted that technological advancement means that claims of privilege would rise, and confidentiality and security are primary concerns. Read more about this here.

There is definitely an increased challenge in managing and maintaining LPP. While many believe this challenge is hard-met, the reality is that along with technological advancement comes ways to better preserve LPP. For example, there are technology that provides higher levels of security and confidentiality.

Undoubtedly LPP is a topic of broad and current interest. The Law Society Journal only just published another article on LPP in May 2016.1 This trend will continue as long as lawyers and clients communicate with each other. There are practical things we can do to better protect LPP. We can begin with education relating to the movement of electronic information. A good place to start could be for legal practices to establish policies and procedures, such as a rule against using text messaging to communicate matter-specific instructions or information. 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.

Clearly, in our technologically advanced world, the better control we have over electronic information and digital communication, the better we can protect ourselves. We have services and solutions that can help facilitate better control. For example, SAI Global Property's Settlement Room is a "Transaction Workspace" where all parties in a settlement can gather online in a controlled environment to share, compare and agree on information prior to actual settlement. Another example is Encompass. Currently, Encompass is the only search visualisation platform on the market with the ability to collaborate and do follow on searches with the shareable workspace. Only those are authoirsed can access information in the workspace

[1]P Hoctor and A Sweeney, “Tips for claiming legal professional privilege over investigation reports” LSJ (NSW, Australia) May 2016 page 92