Technology's Triple Threat to the Attorney-Client Privilege
Journal of the Professional Lawyer, Symposium Issue, pp.171-194, 2013
25 Pages Posted: 14 Jun 2014 Last revised: 10 Nov 2014
Date Written: October 1, 2014
Three issues – volume of recorded communications, ease of dissemination, and lack of knowledge – are today’s primary technology-related threats to the attorney-client privilege. Generally speaking, attorney-client communications must be kept confidential to retain their privileged status. In the information age, the volume of recorded attorney-client communications and ease of their dissemination makes it more difficult than ever to protect against disclosure. Whether that disclosure is intentional or inadvertent, it can result in privilege waiver.
While some perceive that a gap in attorney knowledge about technology is a major threat to the privilege, that does not appear to be the case at this time. The perception is that attorneys who use technology without understanding it are putting the privilege at risk by unintentionally revealing confidential information to third parties such as cloud service providers or those who intercept unencrypted email. In short, some fear that an attorney’s unwitting compromise of confidentiality through use of technology is resulting in an increased incidence of privilege waiver. But this concern is not playing out in the privilege waiver case law. Inadvertent disclosures that result in privilege waiver are generally made directly to opposing counsel and can typically be traced to the volume of information and ease of dissemination rather than lawyer misunderstanding of technology and data privacy.
That being said, a lack of knowledge is the third technology-related privilege threat identified in this article. But it is a legal knowledge deficit that most often jeopardizes privilege in the information age. Attorneys are not educating their clients regarding the need to avoid intentional disclosures of otherwise privileged information to preserve the privilege. With the growing use of email, blogs, and social media, lawyers must explain to clients the risks of disclosing privileged information in these fora. Further many lawyers do not understand the legal protections they can institute to prevent waiver following the inadvertent disclosures of privileged information that are seemingly unavoidable today. These “legal knowledge” threats to the privilege are reflected in the case law and should be the primary concern for attorneys worried about privilege waiver.
This article explores this triple technology threat to the attorney-client privilege and considers how lawyers can better protect the privilege in the future.
Keywords: technology, privilege, waiver, inadvertent disclosure, clawback, confidentiality
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