Attorney-client privilege holds even in digital age

Florida attorneys commonly communicate with clients about problems that need to be kept confidential for a wide variety of reasons. This has always been a primary reason for the principle of attorney-client privilege.

Given that even the major credit rating agencies have suffered hacks, what digital privacy standards can you expect from your attorney?

Attorney-client privilege in the information age

An attorney should be able to be trusted with client information that may be deeply embarrassing, contain trade secrets the client is liable for keeping, compromise their legal position now or in future proceedings or even physically endanger them or their family.

But this is the 21st century and clients might communicate with attorneys via email, cell phone, video chat, file sharing, cloud computing, texting and maybe even social media. The news media is rife with stories about breaches of these services and of others with very robust security.

For these reasons, both the Florida Bar Association and American Bar Association have approved ethical standards for the information age and publish articles for their members to education them about the challenges and ethics of digital security.

Florida again affirms reasonableness as a major test

For example, the Florida Bar issued a nonbinding advisory opinion echoing the New York Bar’s view that attorneys can use cloud computing as long as they take reasonable measures to confirm reasonable safeguards.

Attorneys should:

  • Ensure providers can be held accountable for preserving confidentiality and security and will tell attorneys if a court requires them to produce attorneys’ data.
  • Reasonably investigate the adequacy of providers’ security measures, policies, recoverability and other procedures.
  • Use guards against reasonably foreseeable hacking attempts.

The consensus appears to be that attorney-client privilege remains a strong an expectation as ever. But “reasonable” attention to protecting client information is a challenging and changing standard. Probably, the same courts applying this standard are facing their own ongoing challenges in staying ahead of hackers.

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