Attorney-client confidentiality is the very foundation of relationships between lawyers and their clients. Client trust would be eroded in the absence of this strict obligation of maintaining confidentiality. It is only because clients know that their communications with legal counsel are deemed confidential that they’re able to provide their attorneys with a full description of the underlying facts and issues that lead them to seek assistance in the first place.
Because attorney-client confidentiality is so important to the client relationship, lawyers go to great lengths to ensure that their communications with clients remain confidential and are sent through secure channels. Of course, there’s no such thing as absolute security, which is why lawyers have been ethically permitted to use email to communicate with clients since the mid-1990s. For years, email was one of the most widely used communication tools, even though email is unencrypted and no more secure than sending a postcard written in pencil through the post office. Up until recently, however, it was the best option since more secure methods of electronic communication were unavailable.
But, as we all know, times have changed. There are more secure alternatives for client communication, something bar associations have recently begun to acknowledge. In fact some have issued opinions requiring lawyers to balance the sensitivity of the information being discussed with the security offered by the specific technology being used. (See, for example, ABA Formal Opinion 11-459  and Texas Ethics Opinion 648).
The results of the latest ABA Legal Technology Survey Report (Report) provide an indication that lawyers are aware of this technological shift. Accordingly, the results show that lawyers from firms of all sizes are increasingly exploring more secure ways to communicate with clients in today’s rapidly changing digital world.
Nevertheless, despite knowing the security risks, many lawyers continue to use email for communication purposes. In fact, according to the Report, 91% of responding attorneys reported sending confidential emails to clients within the past year. Large firm lawyers were the most likely to do so and solo attorneys were the least; 94% of lawyers from firms of 10-49 used email to send confidential or privileged communications/documents to clients via email, followed by 91% of lawyers from firms of 100 or more attorneys, 90% from firms of 2-9 attorneys, and 88% of solos.
However, even though lawyers continue to rely on unsecure email to share privileged information, some do take steps to increase email security. For example, 35% of lawyers surveyed reported using email encryption (35%). Unfortunately, others simply relied on confidentiality statements in the body of e-mail messages (71%) or confidentiality statements in the subject lines of e-mail messages (26%).
Other lawyers are providing a more secure method of communication with their clients by interacting online using client portals. In fact, according to the Report, nearly 1/4 of all lawyers use online portals with clients. Using the portals, the attorneys are able to share documents with their clients (31%), communicate in a secure environment (24%), share invoices and accept online payments via credit card or ACH payments(18%), and share case status updates (17%) and upcoming court dates (14%).
Respondents from firms of 100 or more attorneys were the most likely to use secure client portals (59%). The top tools used by firms of all sizes to power client portals were: SharePoint (9.6%), an in-house/custom solution (7.9%), NetDocuments (5.1%), Drop Box (4.0%), MyCase (3.4%), Clio Connect (2.8%), and Box (2.3%).
It’s not 1995 anymore. You have more secure alternatives available, it’s simply a matter of prioritizing the most fundamental tenet of the attorney-client relationship: maintaining and protecting privileged communications. Is your law firm keeping up with the times? How secure are your client communications? If you’re still relying on unencrypted email and confidentiality clauses, perhaps it’s time for a change - especially when it comes to particularly sensitive information. After all, you owe it to your clients.
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