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Client Confidentiality Is Paramount, But Communication Matters More

by Carolyn Elefant on September 13, 2009 · 0 comments

in Client Service, Ethics & Malpractice Issues, Security

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Back in the day when I started my law firm and handled court appointed criminal cases, my first meeting with my clients usually took place in the noisy, cramped holding cell behind the courtrooms.  On warm days especially, the cells teemed with waiting defendants and I’d have to yell my client’s name loudly so they’d hear me above the fray and come to the front of the cell, where I’d try to shake hands between the cell bars.

My goal in those initial meetings was to glean as much information as I could about my client’s financial situation and contacts within the community.  That way, I’d have the ammunition I needed to support an argument during the preliminary bail hearing for release on personal recognizance without bond pending trial.  I tried best as I could to maintain a semblance of privacy or confidentiality in those cramped quarters – either shepherding my client to a more secluded spot in the cell or holding up a folder as a physical barrier between us and the others.  The solution was imperfect; other defendants interrupted my conversations with attempts to hit on me or requests for representation or banter with their buddies.  But imperfect as confidentiality was in those circumstances, I couldn’t avoid those meetings because they enabled me to gather information to help get my clients released.

These days, I’m often reminded of my time in the holding cell whenever I hear criticisms of free or hosted email services like Gmail (disclosure – my husband works for Google), Yahoo or the like.  True, hosted email may not offer 100 percent confidentiality but the alternative is to make attorney client communication so complicated that we may discourage it entirely.   Even if we lawyers were to switch over to encrypted email or secure client portals, there’s no guarantee that our clients would readily use them.  And I’m not willing to complicate email for my clients, beyond advising them on basic precautions, such as warning that emails sent from work computers may be discoverable or to advise against sending sending sensitive information that’s vulnerable to identity theft (like social security numbers) via unsecure email.  Beyond that, I’m willing to take my chances.

I know that some offices ask clients to communicate through online portals, but my own experiences with a portal for any thing more than housing documents have been unsuccessful.   My clients prefer the fluidity of email to communication behind a password protected portal.   Transmitting ordinary discovery information or changes to a contract or responding to client inquiries by email doesn’t create much risk with respect to identity theft and subjecting these communications to password protection breaks the flow.

To me, sacrificing attorney-client communication for an added layer of security isn’t worth the price, particularly when I’ve yet to see a single incident where an attorney inadvertently waived privilege because someone hacked into his email account and revealed client confidences for all to see.  Back in the holding pen, I talked to my clients in less than ideal circumstances because it was imperative for their case and to my ability to represent them zealously.  Perhaps email carries some risks, but to my mind, the risk of not communicating with our clients in a way that’s convenient to them is far, far worse.

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