Safeguarding Attorney-Client Privilege in a Wireless World

Transcription

1 Safeguarding Attorney-Client Privilege in a Wireless World What to consider when communicating with your clients Marc S. Martin, Partner mmartin@klng.com

2 Attorney Treatment of Client Communications The degree of caution with which an attorney handles communications between the attorney and the client has two primary consequences: An attorney may violate his duty of confidentiality under Model Rule 1.6 An attorney may accidentally waive (or cause his client to waive) attorney-client privilege. 2

3 Preliminary Questions What medium? Phone, , instant message, fax, etc? What form? Plain text, word-processing document, Adobe document, within body of ? Which account (work or private)? Does the physical place of origin of the matter? Does its place of retrieval matter? 3

4 A few terms Wireless Generally, a service or technology that involves the transmission and reception of voice and/or data over the radio spectrum. Cordless a handset that operates over certain frequencies within a short range of a base landline phone. Cellular/PCS/Wireless a mobile commercial radio service provided by a common carrier that includes voice and data communications over certain frequencies to subscribers, typical via digital technologies. Wireless Broadband/WiFi/WiMax Technologies that enable fast transmissions of large files of digital data, video, voice and other information typically to any enabled device (e.g., laptop) within a certain geographic range of a transmitter. VOIP Voice over Internet Protocol. A technology that transmits the digital bits of voice and data information over computer networks in a manner that may enable both basic telephone-like communications services and enhanced interactive functionalities. 4

5 ABA Formal Opinion Issued in 1999, addressed , fax machines, and cordless/wireless phone communications. Opinion already out of date: messages are not broadcast over public airwaves. (e.g., Blackberry, PDA, WiFi, etc.) The Opinion generally approves of the use of unencrypted communications as a method of communication consistent with Model Rule

6 ABA Formal Opinion Preserving confidentiality ethically includes choosing a means of communication in which the lawyer has a reasonable expectation of privacy. The opinion notes that it is not reasonable to require that a mode of communication be avoided simply because interception is technologically possible, especially when unauthorized interception of the information is a violation of the law. Query: Is there a difference between technically possible and likely? 6

7 New York State Bar Association: Ethical Opinion No Metadata Addresses ing documents, and the metadata which may exist beneath the surface. Information about previous drafts, types of revisions Hidden text may reflect editorial comments, strategy considerations, legal issues, or legal advice. 7

8 New York State Bar Association: Ethical Opinion No Metadata Opinion affirms the fact that lawyers have a duty to use reasonable care when transmitting documents by to prevent the disclosure of metadata containing client confidences or secrets. This is a good reason to send Adobe Acrobat versions instead of Word Documents, or save into a new document, where possible. It is unethical to seek to exploit such metadata, should another party provide it. 8

9 Statutory Background There are two main laws which establish a statutory backdrop against which one must make communications decisions: Electronic Communications Privacy Act prohibits the unauthorized interception or disclosure of any wire, oral, or electronic communication. Computer Fraud and Abuse Act prohibits the unauthorized access of a computer, including through a network. 9

10 Statutory Backdrop The aforementioned laws provide substantial support for the idea that communications protected these statutes have a reasonable expectation of privacy. However, it should be noted that the 1 st Circuit, in United States v. Councilman, has challenged the applicability of the ECPA to certain types of interception. This interpretation could undermine the presumption of privacy. (The Department of Justice was granted rehearing en banc, and a decision has not yet been handed down.) 10

11 Who is the Client? Who is the client the corporation or an employee of the corporation? Generally, employees who have consented to monitoring of electronic communications in the workplace have no reasonable expectation of privacy. United States v. Simons, 206 F.3d 392,

12 Location, location, location From where was the communication sent? From where was it accessed? If the is sent to an AOL account, but the client retrieves the at work or another venue where Internet use is subject to supervision, then the may lose protection. Watch the cc: or bcc: as distribution to a third party likely eliminates attorney client privilege ex. Martha Stewart, next slide. 12

13 Martha s Mistake In Martha Stewart s criminal trial, she forwarded an from her attorney to her daughter. She did waive the attorney-client privilege. However, the court also found that she did not waive the attorney work-product protections. 13

14 Attorney-Client Privilege in a Corporate Setting in a world of cc: s The implications of the erroneous CC: are intimidating, even without the intricacies of corporate representation. In a corporate setting, must be careful not to waive privilege by including individuals inappropriately, or including consultants. See Streamline Capital, LLC v. Hartford Casualty Insurance Co., No. 02 Civ PKC MHD (S.D.N.Y. 01/11/05) 14

15 New Technologies, New Concerns As noted earlier: the ABA Formal Opinion noted: messages are not broadcast over public airwaves. Today, they are with devices like Blackberry, Treo, Palm, and other wireless devices. In addition, instant messaging and wireless SMS (text) messages are growing in popularity. s are sent, documents are transmitted, and text messages may be exchanged between attorneys and their clients, over the radio spectrum with or without encryption. Although many of these forms of communication may be protected by statute, some may not be. (public WiFi?) 15

16 Inadvertent Production A technical glitch, or in some cases, a malicious interception, could be considered an inadvertent production. Remember metadata. A properly addressed, secure piece of with an attachment could contain privileged information. 16

17 Balancing Tests Many courts have employed a balancing test, which has five factors, in determining whether or not an inadvertent production should result in the loss of privilege: (1) the reasonableness of the precautions taken to prevent inadvertent disclosure, (2) the amount of time it took the producing party to recognize its error, (3) the scope of the production, (4) the extent of the inadvertent disclosure, and (5) the overriding interest of fairness and justice. 17

18 Reasonableness of the precautions taken to prevent inadvertent disclosure. This factor, of the five, is the most relevant to the use of advanced technologies, e.g., reasonableness of laptop communications from a Starbucks hotspot, airport lounge, etc. Taking reasonable precautions should preserve benefit of the doubt in close calls. See American National Bank and Trust Co. of Chicago v. Equitable Life Assurance Society of The United States, No (7th Cir. May 4, 2005) (no discovery sanctions on party that had erroneously asserted privilege on internal s to avoid production, which it had taken steps to keep confidential). Issues: Is encryption required? Anti-spyware and anti-virus software? Screen saver locks on PDAs? Could technical assistance (from a third party) mean the inadvertent loss of privilege? 18

19 ABA Formal Opinion When the lawyer reasonably believes that confidential client information being transmitted is so highly sensitive that extraordinary measures to protect the transmission are warranted, the lawyer should consult the client as to whether another mode of transmission, such as special messenger delivery, is warranted. 19