Preserving Privilege in the Electronic Age

In the wake of the recent revelations of the National Security Agency’s surveillance of friends and foes alike, you may have increased concerns regarding the confidentiality of your privileged communications.

Spying notwithstanding, privilege is created when communication — written or oral — regarding legal advice takes place between a lawyer and the lawyer’s client in confidence. The primary pitfall regarding privilege is that it is waived when the content of the communication is accessible to an outsider, even if unintentionally so. In this age of electronics, the burden of preserving privilege does not fall on the one who exposed the information, but on the recipient. Nonetheless, both lawyer and client have a vested interest in preventing inadvertent disclosure.

Be aware of your surroundings

If you use your laptop in a public place or speak about confidential matters on your cell phone where other ears can hear you, you may be waiving privilege. Similarly, if you use your work computer for confidential matters, even for transmitting privileged emails via your personal email account, you may be exposing your confidential details to outsiders — in the form of a vigilant employer who monitors computer use.

Take precautions to protect against waiving your privilege accidentally

To protect your legal documents and spoken communications from unwanted exposure, adhere to the following:

Do not use your laptop for matters subject to privilege when it is visible to others.
Do not discuss matters subject to privilege on your cell phone in the public arena.
Avoid using personal email on work computers for privileged communications — particularly if you know your company reserves the right to monitor all email accounts.
Create a separate protected computer file for privilege-protected documents.
Make privilege-protected files password-accessible only.
Use encryption when sending documents over external Internet connections (though unencrypted transmission does not waive necessarily privilege).
As telecommunications advance, issues of confidentiality are reexamined and determined afresh. Take your concerns to a conscientious, experienced business law firm that can walk you through this brave new world to protect your interests.