Attorneys and their clients have had to change their typical means of communication. At one point, nearly 90% of Americans were under a stay-at-home order. As a result, videoconferencing has become an ever more popular means of communication within the legal field. However, video conferencing is not without its own risks. In fact, many common video conferencing practices may lead to the infringement of attorney-client privilege.
Attorney-client privilege protects the communication between a client and the client’s attorney. As an extension, the attorney-client privilege allows the client to communicate with confidence. If a third-party were to breach the protected attorney-client relationship, the privilege would no longer be instantiated; as a result, confidence would be lost. Typically, the presence of a third-party waives the attorney-client privilege. Furthermore, attorneys have a duty to protect privileged information and to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”
During this time period, videoconferencing has become the new norm of legal work, inevitably bringing a new layer of risk to the privacy of client and data, which extends to attorney-client privilege. Until it is safe to enter the office again, it is imperative that firms account for and develop policies around acceptable use of videoconferencing technology that will ensure that client information remains private and privileged.
Potential measures to protect client confidentiality:
- Password-protected meetings
- Limit meeting recording
- Limit screen sharing
- Hold meetings in private areas
Topics: Litigation, Litigation Finance, Virtual, COVID-19
David Saunders & David Greenwald, INSIGHT: Zooming and Attorney-Client Privilege
Bloomberg Law (2020), https://www.bloomberglaw.com/exp/eyJjdHh0IjoiQ1ZOVyIsImlkIjoiMDAwMDAxNzEtZWExYy1kMDAwLWE5N2YtZWE3ZTkwYWMwMDAxIiwic2lnIjoiOFhkbWkxRDdBZG9HTjFIVUdQSDhBQU10amhjPSIsInRpbWUiOiIxNTkwMTcxMjAyIiwidXVpZCI6IitGcnl1OU9tb05jeVhwTDR6WDdyZVE9PVdLQjZZblVUa1BZOXlOUm9JNFlGV3c9PSIsInYiOiIxIn0