There is no greater privilege of confidentiality than that accorded the communications between an attorney and a client. No one, not even the Supreme Court, can invade that privilege without the express consent of the client. The rule appears in every state’s Codes of Professional Responsibility and Evidence. The only true exception is when an attorney has reason to believe the client is about to commit a crime.
The privilege goes to the core of the attorney-client relationship. We are the guardians of secrets. Unless a client can safely confide in us we are rendered ineffective. The privilege is broken when we permit a third party to be part of the communication. That third party is free of the constraints of the privilege and may broadcast the most private information learned, to the client’s eventual detriment. Protecting that privilege is the responsibility of the attorney. Too often a client will appear for a conference accompanied by a companion or spouse for moral support. The smart lawyer politely excuses the companion, understanding the significance of allowing that person to share the confidential discussion that is to ensue.
A controversy is brewing in our courts with the recent disclosure that a fellow defendant was wired by law enforcement and sent into a private conference between an attorney and client. Apparently, this egregious practice is longstanding in New York state, but foreign to Connecticut; however, that is a column for another day.
There is now another landmine for the lawyer and client: electronic communications. Writing this I feel like my grandfather, who was born in the era of horse and buggy and saw us land on the moon before his death. When I started to practice we sent letters, typed with carbon copies for the file (for the very young you can read about Carbon Copies on Wikipedia). We were careful to destroy the carbon paper lest someone happen upon it and read a privileged communique. Now we are in the age of social media, twitter, texting, and emails.
We have all had the experience of trying to reach a busy person–who answers the phone these days? The most direct method to get that person’s attention: text or email. Smartphones have taken our email accounts off our desktop and put them in our pocket. This has now become the fastest method of attorney-client communications. There are even billing programs that will track the times spent on these exchanges so no second is missing from the invoice. For the busy young lawyer on the go this is a godsend; or is it?
A recent opinion from the American Bar Association advises about the potential pitfalls in using emails and text messaging to transmit confidential communications, particularly where the communications are over work place devices or systems. Lawyers can no longer guarantee that your employer or others within your home will not have access to personal email communications and text messages. Before permitting this as a means of communication with your lawyer you should make an inquiry as to the level of privacy protection that any such communications will have.
For example, although many employees may be aware that accessing their personal email via a work computer might potentially allow the employer to view their personal email, you may not be aware that accessing your personal electronic messages via an employer-provided smartphone might raise similar issues. Text messaging may raise comparable concerns.
Employer-provided computers, systems and smartphones are not the only concern here. Even where you access personal email on a personal smartphone or home computer, there may be access by others, such as family members, particularly in cases such as divorces or will contests. Other problems may arise with the use of hotel or library computers as well.
You should discuss this with your attorney and investigate whether there are any potential privacy leaks that could affect you before communicating by electronic means.