Does Access to Justice Require Access To Security?

A panel of security experts moderated by Above the Law’s David Lat at ABA Tech Show 2016  offered lots of solid, practical advice on what lawyers can do to ensure confidentiality of communications with clients. Tips included using FaceTime or iphone-to-iphone texting – both of which are encrypted and surprisingly secure, encrypting emails, avoiding Dropbox and employing password managers. All well and good on the attorney’s end of the conversation – but what about clients, particularly those of lesser means? As one panelist pointed out, Apple products – which offer more secure systems by default – are also more expensive than other devices and less likely to be owned by indigent clients. In addition, clients of lesser means may communicate with their lawyers on a computer at their office or in the library, where they automatically have less privacy.

One panelist suggested a good solution to address security in conversations with clients of lesser:  invest in fully encrypted and secure mobile devices that can be loaned to clients for the duration of the case.  Lawyers should also emphasize the importance of security precautions to preserve attorney-client confidentiality, and educate clients on best practices such as avoiding communication with attorneys on public machines, posting about their case on social media or forwarding emails from their attorneys to family and friends.

What’s troubling, however, is that as we move towards #altlaw models designed to expand access to justice , we may be compromising security.  For example, does a service that relies on non-lawyers to complete forms for clients protect client confidences from disclosure? What about online matching services like Court Buddy or  Rocket Lawyer or the myriad of other platforms that require clients to input information about their case online? These platforms aren’t “law firms” so presumably, privilege doesn’t attach to client communications.

Truthfully, even in today’s society where surveillance has become increasingly pervasive, hackers aren’t likely to be attracted to many of the small potato clients served by solos and smalls or online platforms.  Moreover, not every client requires Edward Snowden-level security, but reasonable security proportionate to the nature of the case. Still, at a minimum, clients need to be educated about and protected against potential threats to attorney-client confidentiality – and clients of lesser means need to be included in those conversations.  Most of all, as we embrace non-lawyer providers and online solutions to help unrepresented litigants, we need to ask ourselves whether these services can truly provide access to justice if they don’t provide access to security.

What types of security measures does your firm employ? Do you discuss security considerations with your clients?

 

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