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Working Remotely and Safeguarding the Attorney-Client Privilege: Legal Ethics

Preventing Inadvertent Waiver, Maintaining Confidentiality and Privilege in a Work From Home Environment

Recording of a 90-minute CLE webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, June 2, 2020

Recorded event now available

or call 1-800-926-7926

This CLE course will prepare attorneys to comply with the fundamental rule that a lawyer must not reveal information relating to a client's representation unless the client has given informed consent when the attorney must work in unusual conditions, such as when forced to relocate on short notice to a non-office or home environment, to work remotely, and in an open-office configuration.

Description

All jurisdictions have some version of the ABA's Model Rule 1.6, which provides that a lawyer "shall not reveal information relating to the representation of a client." The duty of confidentiality is much broader than the attorney-client privilege.

An attorney must not disclose any information communicated in confidence by the client nor any information related to the representation, regardless of the source. There is no exception in the rule for "publicly available" or "generally available" information. However, some states exclude from the definition of "confidential information" information that is known to a sizeable percentage of people in the local community, trade, or field.

Attorneys, therefore, have conformed their conduct and outfitted their regular workplaces to meet these obligations and make compliance second nature. From time to time, however, attorneys and their clients find themselves unexpectedly and by necessity working from a new location, using unfamiliar tools, in temporary workspaces not optimized for confidentiality and under acute personal and professional stress.

Listen as the panel discusses ways lawyers working remotely, at home, or in open-offices can inadvertently disclose confidential information and ways to mitigate those risks.

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Outline

  1. Duty of confidentiality
    1. Individual clients
    2. Organizational clients
    3. Over-inclusion on email and conferencing
    4. Prospective clients
    5. Continuation of the duty after the attorney-client relationship ends
  2. Confidentiality vs. attorney-client privilege vs. work product
    1. Authority
    2. Coverage
    3. Operation
    4. Responsibility
    5. Duration
    6. Improper release/breach
  3. What constitutes a breach of confidentiality
    1. Are all breaches of confidentiality equal?
    2. Protecting the attorney-client privilege in emails, videoconferencing, texting

Benefits

The panel will review these and other essential matters:

  • Model Rule 1.6, ABA Formal Opinions 479 and 480, and state law comparisons
  • Reasonable precautions to prevent information from getting into the hands of unintended recipients
  • What level of competency in cybersecurity is required by Model Rule 1.6
  • The duty to protect information that could lead to the discovery of confidential information
  • How the concepts of confidentiality, attorney-client privilege, and work product are related but different

Faculty

Hartzell, A. Neil
A. Neil Hartzell
Partner
Freeman Mathis & Gary

Mr. Hartzell has extensive experience in a broad range of matters, representing both plaintiffs and defendants in...  |  Read More

Lefkowitz, David
David Lefkowitz
Principal
The Lefkowitz Firm LLC

Mr. Lefkowitz represents individuals and companies (corporations, LLCs, PCs, etc.) in their claims for legal...  |  Read More

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