Mar

Is the Attorney Client Privilege Violated By Using a Web 2.0 Site?

Recently I gave a presentation for the Association of Corporate Counsel’s Law Department Management Committee (there’s a mouthful!) on Web 2.0 for Contracts. During the presentation, one lawyer asked me whether using a web site to create and store a contract for a client violates the attorney client privilege. This is a pertinent issue given that Web 2.0 offers many web sites where lawyers can create and store contracts (including our own, WhichDraft.com). As all lawyers know, sharing confidential client communications with a third party, who is not required to keep the legal advice secret, violates an attorney’s ethical obligation to do so. So, does sharing confidential legal advice (contained in a contract) with a third party web site pose just such a problem?

Frankly, I was surprised by the question. Given the routine practice of emailing unencrypted contract drafts, I told my questioner that confidential client information is routinely exposed to many third parties who handle email traffic, seemingly without a problem. I added that if he’s still worried, he can use Web 2.0 sites to create contracts and download them to his hard drive before he enters any client identifying information.

But I thought I could provide a better answer, so this blog post is my first crack at investigating the topic of attorney client privilege and web sites. Surprisingly, I could not find a single case or ethics opinion directly addressing whether or not use of a web site in this manner violates privilege. However, there are a number of closely related rulings that I think, collectively, demonstrate that the privilege is safe.

The key case is City of Reno v. Reno Police Protective Ass’n, 59 P.3d 1212 (Nev. 2002), modified, 2003 Nev. LEXIS 25 (Nev. May 14, 2003), which states that privileged information sent via unencrypted email does not destroy the privilege. In this vein, I would think that a web site storing privileged information, subject to a nondisclosure privacy policy, is even more secure and should be fine from a privilege standpoint. Additionally, under ABA Formal Op. 398, when a lawyer has client files stored by a third party warehouse, the lawyer needs to obtain reasonable assurances that the warehouse will protect confidentiality. Similarly, a web site, with a privacy policy protecting the attorney’s contracts from prying eyes, would also seem to clear this “reasonable assurances” hurdle.

Also, check out these additional documents and links to discover more information on this topic. Collectively, I think they demonstrate that with reasonable protection, the attorney client privilege on the Internet is safe and sound.

Additional Resources
-Nevada Supreme Court holds attorney-client privilege not waived by transmission via e-mail http://www.legalethics.com/?p=56
-Delaware addresses e-mail confidentiality issues http://www.legalethics.com/?p=70
-Ethical Issues and Technology Rob Aronson 1-6-04 Summary of Ethical Issues (www.elawyering.org) http://tinyurl.com/aqyfma
-See Model Rule of Professional Conduct (MRPC) 1.6. (lawyers may not reveal “information relating to the representation” of a client.)
-North Dakota St. B. Ass’n Eth. Comm. Op 99-03 (June 21, 1999) (security measures must be in place for backup storage)
-ABA Formal Op. 398 (reasonable assurances that paper file storage company will protect confidentiality)
-Law Practice Management Section: eLawyering Task Force http://www.abanet.org/dch/committee.cfm?com=EP024500
-A Quagmire of Internet Ethics Law and the ABA Guidelines for Legal Website Providers http://www.allbusiness.com/legal/882375-1.html