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When to Research is to Reveal: The Growing Threat to Attorney and Client Confidentiality from Online Tracking

41 Pages Posted: 2 Apr 2011 Last revised: 24 Dec 2013

Anne Klinefelter

University of North Carolina School of Law

Date Written: June 18, 2012

Abstract

Attorney-client privilege, work-product protection, and the attorney’s ethical requirement to protect confidentiality of client information are at risk from commercial surveillance of online activity. Behavioral advertising, data aggregation and sale, and government access to commercially assembled profiles have been denounced as threats to privacy and confidentiality interests, but the harm to attorney and client confidentiality is of particular concern. As the legal research and broader information industries shift from print materials to services on the internet, attorneys cannot simply avoid the online environment to protect confidentiality. This article examines the risk from tracking of online legal research and draws two conclusions: 1) Lawyers must take reasonable precautions to protect confidentiality of internet-based research; and 2) Reasonable precautions are elusive due to the constant evolution of tracking technologies and practices, so attorneys should work collectively to update best practices and to evaluate and influence online industry activities so that the time-honored confidential nature of legal representation can be preserved.

Keywords: Tracking, Behavioral Advertising, Data Aggregation, Privacy, Confidentiality, Internet, Online Legal Research, Attorney-Client Privilege, Work-Product Protection, Ethics

Suggested Citation

Klinefelter, Anne, When to Research is to Reveal: The Growing Threat to Attorney and Client Confidentiality from Online Tracking (June 18, 2012). 60 Defense Law Journal 71 (2011); Virginia Journal of Law and Technology, Vol. 16, No. 1, p. 1, Spring 2011 ; UNC Legal Studies Research Paper No. 1799607. Available at SSRN: https://ssrn.com/abstract=1799607

Anne Klinefelter (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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