ABA Techshow

In-house lawyers face technological minefield to preserve client confidentiality

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In-house counsel have historically faced greater hurdles than their outside counterparts in proving that their client communications are confidential. And advancements in legal technology have made in-house counsel’s lives even more difficult.

During a session at ABA Techshow on Friday, Philip Favro, senior discovery counsel at Recommind, identified several technological threats in-house attorneys face in maintaining client confidentiality, and offered tips and advice for protecting that duty. Entitled “Corrosion of Confidentiality: How Technology Threatens Privilege,” Favro spoke about how the ubiquity of email, as well as increasing reliance on mobile devices, cloud computing and social networking, all have the potential to turn confidentiality into a relic.

Emails, for instance, are by no means a secure method of communication. Favro pointed out that, even before the days of email, courts imposed a higher degree of scrutiny concerning in-house lawyers’ communications with their clients due to the fact that in-house lawyers often serve as both business advisers and attorneys. Unlike communications with outside counsel, which were presumed to be legal in nature, in-house lawyers were not given the same presumption because of their multiple roles within a company. In-house attorneys had to demonstrate that their conversations were legal in nature in order to be confidential.

Favro noted that many companies mark every single email message with a standard “privileged and confidential” disclaimer—a practice that is insufficient to maintaining confidentiality. Another tactic is to copy in-house counsel on every email as a matter of course in order to develop a veneer of confidentiality. That practice, according to Favro, is not only ineffective, but also creates a huge mountain of data for counsel to sift through if and when the company is sued. Putting together a privilege log of protected emails becomes more difficult, Favro explained, especially since no judge will allow a company to claim blanket privilege over any and all communications with counsel.

“Email invites additional scrutiny because it provides an amazing snapshot of what happens in a company,” said Favro. And it’s not limited to sent emails. Draft emails are also problematic, cautioned Favro, noting that “if draft emails don’t match up with the sent version that is claimed as privileged, then the drafts could be discoverable.”

Favro said that social media sites and cloud computing services frequently have provisions buried in user agreements so that they can access a user’s information or data or even disclose said information to third parties. Meanwhile, mobile devices are especially vulnerable to hackers or thieves if proper security safeguards aren’t followed.

Ultimately, an in-house attorney can serve his or her client better by taking a proactive stance regarding use of technology. According to Favro, in-house counsel must develop a strong policy regarding email communications and retention, and use of mobile devices, social media sites and cloud services, then enforce it throughout the company. In-house attorneys (along with outside counsel) can also try to limit privilege log burdens by stipulation and/or court order.

“A company must have a strong policy and stick by it,” said Favro.

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