By Therese A. Cannon, Nancy B. Heller, RP, and Stacey Hunt, CLA, CAS
Do we as paralegals currently have ethical obligations to protect confidential communications that might be more at risk of disclosure because of technology? If so, what are our obligations? Also, are there other ethical issues arising from technology that paralegals should be aware of?
Cannon: Paralegals do indeed have a duty of confidentiality that extends to communications that might be more at risk of disclosure because of technology. Because of the dynamic nature of technology, we learn of new risks to confidentiality all the time. Paralegals and others in law firms need to keep up-to-date with the latest in this critical area.
When law firms first started using e-mail to communicate with clients, some bar association committees that issue ethics opinions determined that the use of e-mail might be a breach of ethics because sending e-mail was “like sending a postcard through the mail.” Better security and greater understanding of e-mail technology have resulted in a shift in thinking about its use. In 1999, the American Bar Association issued Ethics Opinion 99-413, which held that sending confidential communications by means of unencrypted e-mail isn’t a breach of the duty of confidentiality “because the mode of transmission affords a reasonable expectation of privacy.” This opinion has been followed in every state, and e-mail now is a common daily means of communicating about privileged matters.
However, the use of e-mail carries high risks of inadvertent disclosure if not used with care. It’s easy to misdirect an e-mail message by hitting “Reply to All” or selecting the wrong address in your electronic address book. To avoid accidentally sending confidential communications to the wrong person, always double-check who you have on the “To” line before you hit the “Send” button.
In addition, e-mails that contain privileged information, including routine communications with a client, should contain a statement that the communication is privileged and if the recipient receives it in error, he or she should not read it and should inform the sender. While this disclaimer can’t prevent someone else from reading a message, it can help you later make the case that disclosure was inadvertent and that the communication should retain its privileged status. Some firms also use encryption software or have closed networks that add protection for privileged information.
Another major concern in using technology involves the ability to track changes in documents or view metadata. When you send a document to another party, it’s possible for that person to use a tracking feature to follow the changes that have been made to the document before it was sent. This feature allows the reader to see previous versions of the document and comments that might have been directed to the client or others in the law firm. Obviously, revealing this “back story” to the document also might reveal privileged work product, including strategies and even weaknesses in the client’s position, and could be very damaging. As a paralegal, you need to be aware of this and take appropriate steps to only send clean documents by using a metadata removal program.
It’s also important to keep your computers secure. Passwords should not be obvious, such as family names and birthdays. Use smart cards for laptops so they can’t be accessed if they are stolen. Turn off your computer if you will be out so no one can readily access documents. Documents in draft should not be left up on the screen when you are not at your desk. Firms also should have policies regarding which documents should be deleted, when and how.
Hunt: Teri has done a great job covering computers, so I am going to talk about other technology traps out there. I am sure there are many of us who accidentally have faxed client material to a wrong fax number. I have faxed draft documents to complete strangers just by misdialing the number. In a classic mistake, I opened a fax cover sheet that I was going to revise, got interrupted by a phone call (I hope this isn’t sounding familiar to you), didn’t change the phone number on the fax cover sheet, and accidentally sent a draft expert declaration to opposing counsel. Talk about wanting to crawl under my desk and stay there.
Fortunately, there was a very ethical attorney on the other side who immediately called to let me know my error. So even the low-tech and humble fax machine can leave us open for ethical mishandling of client documents. Always double-check the number you have dialed before hitting “Send.” Even better, if it’s a number that is used often, enter it into the fax machine’s directory and let it do the dialing for you.
When cell phones first came on the scene, similar concerns were raised about the interception of phone calls as they now are being raised about the interception of e-mails. This concern also is true of cordless telephones. With simple-to-obtain equipment, snoopers can listen in on wireless transmissions. Although, in his 2000 seminar, “10 Ways to Commit Malpractice on Your Computer,” Daryl Teshima, vice president of Strategic Discovery Inc. and former editor of Law Office Computing, said there is more risk of disclosing client confidences in elevators or in a conversation in a restaurant than there is in having a phone call or e-mail intercepted. Along these lines, be careful when using your cell phone outside the office, making sure you discuss client matters away from where people can overhear you.
Regarding e-mail, Teshima provided some ethics opinions from various state bars about how law firms should handle the electronic transmission of confidential client materials. Some bar associations require their members to obtain written consent from clients to do so; others merely encourage attorneys to discuss the dangers with clients or obtain verbal consent. Always check the rules in your state about what is required.
Heller: Teri and Stacey have covered the gamut of technology, but I would like to mention one additional item: the speaker feature on telephones. This hands-free feature makes life a lot easier, particularly when trying to take notes or access files or documents while interviewing clients and witnesses. It’s also very handy for playing back voice mail messages while multitasking, something paralegals often do. However, I caution you to close your door or turn down the volume when playing back messages or talking with a client or other party regarding a particular matter. You don’t know who could be walking past your office or lurking nearby, and we have the same duty to protect client confidences orally as we do in writing.
In addition, when preparing privileged documents using your computer, I encourage you to liberally use notations such as “Confidential Attorney-Client Privileged Communication” or “Confidential: Attorney Work Product Material” as appropriate. Whether you insert this notation as you are preparing the document, or stamp it or Bates label it after the fact, courts are far more likely to protect the document when such statements exist. If you work on a highly sensitive matter and generate a lot of work product in connection with that matter, check with the supervising attorney to find out if he or she would like you to add any protective notations.
Finally, I recommend you use the security features offered by your law firm or company computer system whenever necessary. For example, if you are preparing an employee evaluation or other sensitive document that you don’t want others in your place of employment to be able to access from the general computer system, use the lock or other security feature that your system offers.
Therese A. Cannon is the associate director of the Western Association of Schools and Colleges, Senior Commission in Alameda, Calif. She also serves as the educational consultant to the American Bar Association Standing Committee on Paralegals. She is the author of “Ethics and Professional Responsibility for Paralegals” and “A Concise Guide to Paralegal Ethics,” both published by Aspen Publishers, Inc., and is co-author of “Paralegals, Profitability, and the Future,” published by the ABA. She has been teaching and lecturing on legal ethics for more than 25 years.
Nancy B. Heller, RP, has been a litigation paralegal since 1978, and has been employed with the Columbus, Ohio-based law firm of Vorys, Sater, Seymour and Pease for the past 20 years. She has been a frequent seminar lecturer on the topic of ethics and is a co-author of the National Federation of Paralegal Associations’ Model Code of Ethics. Since 1999, she has served on the adjunct faculty for the Capital University Law School Paralegal Program where she teaches Ethics and Law Office Practice and Civil Litigation II: Trial Preparation and Practice. She also is a co-author of the ethics section for NFPA’s Paralegal Advanced Competency Exam Study Manual.
Stacey Hunt, CLA, CAS, is a graduate of the Fresno City College paralegal program and a litigation paralegal with Duggan Smith in San Luis Obispo, Calif. She is the co-author of Evidence Management for the Paralegal (Cengage, 2007), as well as two other paralegal books. Hunt taught legal writing and ethics for the paralegal studies program at California Polytechnic State University in San Luis Obispo. She is a past president of the California Alliance of Paralegal Associations and currently is working on modules for the Commission for Advanced California Paralegal Specialization’s new online program.