Editor's Note: First published in February of 2020, this article presents some helpful insight into how to ensure privilege is protected in the modern age, across communications platforms. Read on for a refresher to ensure you're operating carefully in your organization.
Is a text message between a lawyer and her client protected by privilege? What about a Facebook message?
Some technologies have become so deeply entrenched in our daily habits that these kinds of questions slip off the radar. But during a Relativity Fest 2019 session entitled “Are You Violating Attorney-Client Privilege?” panelists shared why that propensity toward ignorance is dangerous—for attorneys and clients.
Moderated by Constantine Pappas of Relativity’s solutions team, the panel was joined by Salina Hamilton, member attorney at Dickinson Wright; Timothy Kennedy, discovery counsel at McDermott Will & Emery; and Laura Gottlieb Feldman, senior discovery attorney at Willkie Farr & Gallagher.
They shared how, with mindful and responsible best practices, lawyers can better protect privilege in an evolving technological landscape.
Rule #1: Educate yourself.
Constantine opened the discussion by acknowledging a battle being fought by today’s attorneys: “On one hand, we have a duty to protect our clients’ information and our work. But on the other, we have this desire for convenience in technology—and we have demand from our clients to work effectively and immediately. Sometimes these are conflicting interests.”
Back in the day, most attorney-client communications happened over the phone or in person at the office. Now, many lawyers are checking and responding to clients’ messages on their mobile phones at all times, from everywhere.
This can mean danger when it comes to protecting the details of what should be privileged conversations.
“Our convenience is also our vulnerability,” Salina said. “The desire for immediate responsiveness opens us attorneys up to use of data types and tools that are completely untested in the privilege arena. Text messages are a good example.”
Laura had some great advice on dealing with this problem at the most basic level: “We need to stick with old-fashioned rules: Don’t talk about a matter with a client where you can be overheard. Similarly, are you working where your laptop can be seen over your shoulder? We need to remember the old ways of doing things. Those rules exist for a reason.”
Beyond that, it’s important for attorneys to be educated on the technologies they’re using and their privacy implications.
“Every attorney should be communicating with their IT teams,” Salina said. “As much as they’ve selected the technology I’m using, if a breach happens in my case, it’s my issue—it’s on me as the attorney on the matter.”
The entire panel agreed.
“As attorneys, we’re not IT professionals, but we do need to know enough to ask the right questions and ensure the right protocols are in place,” Timothy concurred.
“We have to stay knowledgeable about what’s out there,” Laura added. “It doesn’t mean being an expert in it, but doing the best we can, reasonably, using the resources we have and our own IT departments, to maintain a strong grasp.”
This knowledge can help you in positive ways, too.
“The pitfalls of tech in maintaining privilege exist, but there’s also an opportunity to leverage it to protect privilege,” Timothy said. “Password protection, encryption, monitoring who has access to what kind of data—these improvements have been very helpful in maintaining privilege.”
Rule #2: Educate those around you.
Still, privilege is a two-way street—and a lot of hands are involved in keeping it safe.
“The client ultimately holds the privilege; it’s our responsibility, as counsel, to safeguard it,” Salina reminded the audience.
That means the education can’t stop with you. It must extend to three other parties as well: your client, your team, and your vendors.
“As attorneys, we hold very sensitive information about our clients—things that should never see the light of day,” Timothy said. “We have to make sure we’re managing people and attorneys below, us as well as vendors, ensuring everyone has enough training to understand that this material is confidential.”
The client has perhaps the most at stake when it comes to protecting privilege, but as non-attorneys, they may not know what constitutes that protection and what doesn’t. That’s where you come in.
“It’s critical to educate your client on what they need to know about the technologies they’re using, because so many don’t have a base understanding of how or when that data is stored and what implications it may have for them,” Salina said. “We actually offer education to clients’ employees about what they’re using and how they should use it. When you’re dealing with litigation, it’s important to make sure those protocols have been maintained—or, if it’s a new case where you didn’t consult prior, go the extra step to educate on what they should do next.”
There may be times when clients don’t follow your best practices, or when your suggestions don’t meet their workflow needs or preferences. In those cases, documentation of the education you’ve provided can offer some protection—and so can handling your own contributions carefully when compromises need to be made.
For example, Salina shared a story about a case during which she reluctantly used Facebook Messenger to communicate with a client who wasn’t open to or savvy with other applications, such as email. “You need to meet your client’s needs while being mindful of privilege in whatever way you can,” she said.
Verifying that your team and vendors are on top of their privilege game is critical as well.
“Educate up, down, and across your team—so anyone involved, in your firm or with your vendors, understands what’s at stake,” suggested Timothy.
Whether that’s asking for documented verification from your vendor that OCR has been re-run after redactions were applied to a data set or training new team members on what they need to know, it requires a lot of vigilance.
“Young associates may come in and not understand these processes or nuances, and you need to talk about it often,” Laura said. “Lawyers so often just think ‘everything we say and do is privilege,’ but that isn’t true. They need to know that.”
Rule #3: Be prepared to handle an accidental waiver.
Unfortunately, we don’t live in a perfect world. Errors happen, misjudgments are made, and privilege gets disclosed. It’s a fact of life for attorneys and always has been.
So, for lawyers who want to learn how to protect privilege more effectively, knowing how to conduct themselves and manage their case if and when disclosure does happen is just as important as preventing it in the first place.
The panelists shared advice that should be familiar to readers of The Relativity Blog by now: Have a 502(d) order in place. It will protect you in this worst-case scenario with as little hassle as possible.
Even if such an agreement has not been made, all hope may not be lost. Salina noted that intent is an important caveat when it comes to whether disclosures constitute a waiver or not.
“Rules vary greatly across jurisdictions, but often, an inadvertent waiver of privileged information can still leave room for an argument that privilege has not been waived,” she said. “But if it’s just true negligence, a judge is not going to be on your side if it gets challenged.”
Laura advised an honesty policy when anyone on a case team learns that privileged information may have been disclosed.
“Do not be scared to tell those above you that a mistake has happened. You caught the mistake! That’s good. Move forward,” she suggested. “Figure out where you went wrong. It’s not for punishment; it’s simply to see where things went wrong and prevent it from happening again.”
Addressing these issues in a straightforward, truthful manner can make all the difference when it comes to finding a peaceful resolution.