Email Privacy Becoming an Issue for the Law . . . and Lawyers Too?!

Carolyn Elefant poses the question in her May 28th blog, Can Outsourcing Violate Attorney-Client Privilege or Waive the Fourth Amendment? The question may actually underscore the lack of legal protections for all off-border electronic communications, especially email. The problem appears especially thorny for law firms. Elefant writes:

Plenty of law bloggers are discussing a declaratory action by Bethesda, Md.-based law firm, Newman McIntosh & Hennessey, seeking a ruling on whether outsourcing privileged client documents for review to companies located outside of the country could result in a waiver of Fourth Amendment protection or attorney-client privilege. Joseph Hennessey, who drafted the motion, argues that foreign companies have no presumption of privacy because the National Security Agency can spy on them without constitutional constraints. Thus, by sending client documents overseas, lawyers may waive their clients' Fourth Amendment protections against unlawful search, or compromise the attorney-client privilege. The firm has also sought opinions from the District of Columbia and Maryland bars on whether lawyers who outsource documents overseas must disclose potential privilege waivers to their clients.

The ABA Best Practices for Acting Competently to Preserve Confidentiality appear to address this situation, in part, for attorneys looking for partial clarity (Rules 1.6 - 1.7). “Factors to be considered in determining the reasonableness of the lawyer's expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law . . ." (emphasis added).

If your email privacy isn’t guaranteed under the law, the ABA appears to be saying, you’d do well by doing good to inform your client. Now it appears that not only are off-border communiqués such as email not protected under US law, but their actual lack of privacy under FISA provisions is currently ensured. Carolyn Elefant notes in her blog of May 2nd that the “Foreign Intelligence Surveillance Act (FISA) now allows surveillance of people located outside the United States without a warrant.”

How then does a firm move private electronic documents to Canada, Mexico, Europe, China, and the Americas and maintain client confidence in its privacy? Extranets offer a partial solution for long-term clients. Other less expensive solutions for maintaining privacy are listed on the website for the Electronic Privacy Information Center (EPIC) . Of these the Legal Lockbox offered by Lawdex is designed specifically for use by law firms moving electronic legal documents and client data.