Legal Technology

Does using Gmail put attorney-client privilege at risk?

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Imagine that a direct marketer has offered a lawyer free services, such as photocopying, in exchange for being allowed to scan client files for research purposes.

Is client consent required? Is this project a good idea, even if clients do consent?

The answers to those questions are obvious, and it is nearly as clear that lawyers may be taking a risk by using Gmail and Google Apps for Business, attorney Chris Castle writes in a recent Texas Lawyer (sub. req.) column.

Lawyers are arguably required to obtain express client consent to Google’s data harvesting under Texas Disciplinary Rule of Professional Conduct 1.05. It says attorneys cannot use “privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation,” Castle writes, and Google’s free email and business apps arguably constitute such an advantage for the lawyer.

Meanwhile, in order to maintain attorney-client privilege, communications need to be confidential. Does Google’s scanning of email and data harvesting violate this requirement?

That question has not been definitively answered, according to Castle, but risk-averse lawyers may want to rethink if they are relying on Gmail. While other alternatives may be more costly and less convenient, “it seems that the ethical issues surrounding obtaining a client’s consent to Gmail data harvesting may well be more trouble than Gmail is worth,” he writes.

See also: “Google Warns Gmail Users, Says China-Based Hackers are Reading High-Profile Content”

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