A Ticking Time Bomb? University Data Privacy Policies and Attorney-Client Confidentiality in Law School Settings

Abstract

With the emergence of a “Surveillance Society” in corporate America, employees often are denied any expectation of privacy when using a computer at work and thus also may forfeit the protection of the privilege for documents created or messages sent at work. As lawyers in private practice are learning, sometimes the hard way, an employee’s use of an employer’s computer network to communicate with an outside lawyer may result in the loss of the attorney-client privilege. Lawyers and scholars are only beginning to address the general implications of recent court decisions in the employer-employee context.

Even fewer have awakened to the potential nightmare that privacy-compromising computer policies may create for practicing professionals inside law schools. Most in the legal academy, especially those outside of legal clinics, have yet to appreciate the threat to attorney-client confidentiality posed by university data privacy policies or practices that allow university officials or administrators outside of the attorney-client relationship to gain access to computer documents and to email on the university network. And scholars have yet to explore the dangers to academic freedom raised by university insistence on the right (even if rarely exercised) to monitor faculty electronic communications and internet use.

The assurance of privacy in computer files and electronic communications is essential for law practice-related educational experiences for students; for faculty professional service, pro bono, and consulting activities; and for faculty academic freedom. Clinical law faculty, staff, and students are most directly and inescapably affected by the ethical problems posed by administration of technology in the university. But traditional podium faculty and legal writing faculty are also increasingly engaged in the part-time practice of law from their law school offices. Indeed, because clinical faculty tend to be ahead of the curve on practice-related matters, other constituents of the law school are less likely to be aware that confidentiality can be gravely compromised by university data privacy policies that are tone-deaf to professional responsibilities. Law school deans and faculty need to be aware of how university-provided technology may be used and administered in a way consistent with, or instead damaging to, the distinct professional nature of legal education. Professional confidentiality in computer and network use may be guaranteed without neglecting the legitimate needs of the university to address abuses of information technology.

Keywords: legal education, legal clinics, clinical legal education, computer law, data privacy, professional responsibility, attorney-client privilege, legal profession