Privacy, Privilege, & The Cloud

According to the 2013 ABA Tech Survey, over 90% of attorneys use smartphones in practice. The most popular smartphones (Androids & iPhones) generally have default settings that store material directly in the cloud. This should be a major concern for attorneys who must protect client confidentiality and adhere to the attorney/client privilege.

The ABA Journal recently reported on ways for attorneys to protect their privacy following recent iPhone updates. "Lawyers must be especially vigilant about securing their mobile devices to guard any potentially sensitive client data." For iPhones, make sure to change your '"Diagnostics & Usage Data,' which can be found in the 'Settings' icon, under 'Privacy.' If you don’t check off the 'Don’t Send' option, 'pretty much everything you do on your iPhone or iPad' is tracked by Apple."

To further protect sensitive data, "Apple provides more suggestions on ways to guard your devices and offers a deeper explanation of their privacy policy on its website."

The ABA Journal also reported on the perils of using of Gmail and other Google Apps for practice. "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."

According to Chris Castle, "[l]awyers are arguably required to obtain express client consent to Google’s data harvesting under Texas Disciplinary Rule of Professional Conduct 1.05. [The rule] 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,' and Google’s free email and business apps arguably constitute such an advantage for the lawyer."

There may also be consequences for violating client confidentiality. "[I]n 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."

These are important points, and this shows that attorneys need to be aware of the ways that technology intersects with the law in order to protect their clients and against malpractice claims.


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