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

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