LAW FIRMS FACE TECHNOLOGICAL
MINEFIELD TO PRESERVE LEGAL
PROFESSIONAL PRIVILEGE – TRUE OR
FALSE?
True. But not entirely, as legal practice managers can turn the answer around. Let me explain, and
then you can make up your own mind.
Electronic communications could pose a risk – true
Lawyers and their clients communicate frequently. In this world of advanced technology, these
communications no longer take place just through good old letters or via a simple phone call. They
now take place largely through emails and sometimes even via text messages or other messaging
services such as Skype. Personally, I had the experience of one client asking me a legal question
over a group WhatsApp channel. I had to (gently!) educate this client o n a number of things… I will
come back to education shortly. The point I want to make here is this – electronic communications
are thought by many to put at risk the confidentiality of legal communications between a lawyer and
a client. Modern communications technologies have made what once would have been limited
disclosure in a closed environment to now easily available to pretty much anyone who has an online
presence.
Technology could be a help but it could also be a hindrance – true
For the legal profession, it is true that there is a vast array of technology that can be used for lawyerclient communication. It is also true that clients now expect to be able to communicate via electronic
means and even via social media. In this light, on one hand, risk of a loss of confidentiality is a
concern. However, on the other hand, there are steps that can be taken to ensure that Legal
Professional Privilege (LPP) is protected and the risk of a loss of confidentiality is managed and
mitigated. While you may not have considered this before, just like many other things, legal practice
managers can make a valuable contribution here.
Clients should be able to communicate with lawyers in confidence – true
There is little doubt that we would all agree on this point – that clients should be able to consult their
lawyers in complete confidence without any fear of having to disclose any communications between
them at a later date. This is pretty much where the idea of privilege came from.
In a nutshell, LPP protects confidential communications between a lawyer and client from disclosure
if they are made for the dominant purpose of seeking or providing legal advice, or for use in existing
or anticipated legal proceedings. Generally, once LPP has been established , it will protect all
lawyer-client communications until such time as it is waived.
Karen Lee | Legal Know -How
ALPMA article for SAIG
07/10/15
LAW FIRMS FACE TECHNOLOGICAL
MINEFIELD TO PRESERVE LEGAL
PROFESSIONAL PRIVILEGE – TRUE OR
FALSE?
LPP could be waived inadvertently – true
It is important to remember that a waiver can be “granted” inadvertently! Often, in -house lawyers
(for example) would try to manage this risk by limiting as much as possible the circulation of
communications within the organisation with whom they are employed.
The introduction of electronic and Internet technology has affected every facet of human existence.
The practice and business of law have not escaped the influence of the Internet, and in particular,
electronic communications and social networking. As with other industries, clients are looking to
connect with legal services online. Undeniably, legal practices of all kinds and all sizes are making
efforts to attract new clients as well as retain existing clients via social media, such as Facebook,
MySpace, Twitter, and LinkedIn. The use of blogs has also become popular.
These new technologies are not just used to post business profiles, share information, and market
services; they are also used as tools when conducting investigative research, particularly in family
and criminal law. Even court orders have been served by law enforcement officers via social media.
For example, did you know that Victoria Police uses social media for a number of its functions and
activities? By way of example, where a Magistrate is satisfied that it is not reasonably practicable to
serve a copy of an intervention order, the Magistrate may make an order for the document to be
served in another manner, and this includes service via Facebook! You can read more about this
here.
This use of social media has prompted regulators around the world to take a long, hard look at the
practical and ethical implications of such use in the legal profession. With regards to LPP, back in
2007, the Australian Law Reform Commission has already noted that technological advancement
means that claims of privilege would increase, and confidentiality and security are primary concerns.
You can read more about the ALRC’s comments here.
Indeed, there are many ways clients can reveal privileged communications with their lawyers without
even meaning to, thereby inadvertently waiving LPP. There are so many forms of communication
through which LPP could be under threat of being waived by accident, such as in chat rooms, on
blogs, on bulletin boards, in emails and attachments, and on websites.
As we all know, anything that is put in the public domain of the Internet is not confidential. This
means, for example, if a Facebook “Friend” asks a legal question on a lawyer’s webpage, and the
lawyer answers that question, then the lawyer might be inadvertently forming a professional lawyer client relationship that comes with a number of professional obligations. Will that communication
chain be subject to LPP? Well, that analysis is not one for us to tackle right now, but it is food for
thought! It is fair to say that whether and what communications would be privileged in such a case
and as the matter progresses would need to be carefully determined and managed.
Karen Lee | Legal Know -How
ALPMA article for SAIG
07/10/15
LAW FIRMS FACE TECHNOLOGICAL
MINEFIELD TO PRESERVE LEGAL
PROFESSIONAL PRIVILEGE – TRUE OR
FALSE?
Legal practice managers can help preserve and protect LPP – very true!
So, there is definitely an increased challenge in managing and maintaining LPP in today’s
technological society. But where many believe this challenge is hard -met, the reality is that along
with technological advancement comes ways to better preserve and protect LPP. And guess what –
like many other things legal practice managers can play an important role in, this is another area
where legal practice managers can work their magic and make a real difference.
The first step in protecting LPP is education. Let’s start with education relating to the movement of
electronic information. Legal practice managers can educate lawyers, and help lawyers to educate
their clients, so as to manage (or in some cases, avoid) the disclosure of confidential information,
whether intentional or unintentional. How do I do this in practice, I hear you ask? A place to start
could be to establish policies and procedures for the firm, such as a rule against using text
messaging to communicate matter-specific instructions or information.
Legal practice manages can also help put in place strict control over distr ibution of all
communications, such as when to use or not to use “cc” and “bcc” when sending emails.
Establishing best practices for digital communication and storage and circulating regular reminders
on how to take care with the use of mobile devices and social media are also worth considering.
On the client front, legal practice managers could help train clients, say by way of newsletter, to take
greater care for what is spoken or published. One tip I came across is, as a client, never say in any
public forum that you have legal advice or provide details of any advice received.
So, let us go back to this question: law firms face technological minefield to preserve LPP – true
or false?
With the intervention of legal practice managers, the answer could be false. With the assistance
and support provided by legal practice managers, lawyers not only could develop a more solid grasp
of advancing technologies, but they could also have guidance in the best ways of using them to their
professional advantage and not to their detriment. Don’t forget technology also provides solutions
that will ensure higher levels of security and confidentiality, which of course is helpful!
Speak to SAI Global and make sure you are supported with the right solutions for your
business. Dial 1300 730 000 and select 4.
Karen Lee | Legal Know -How
ALPMA article for SAIG
07/10/15