Protecting Attorney-Client Privilege While Using Legal Tech
Recently, federal courts throughout the country have sent cautionary messages to attorneys who use various vendors like UniCourt to access court documents, due to a growing concern with these vendors storing confidential case information like the personally identifiable information contained within sealed court documents. For a variety of reasons, from confidentiality implications to concerns that data may be collected and sold to third parties, courts cautioned attorneys not to share their CM/ECF credentials with these vendors.
Vendors have responded to these concerns primarily by stating, in various forms, that these warnings do not apply to them because they don’t store confidential information. The companies who have responded include Pacer Pro, Docketbird, Docket Alarm, and the RECAP Project. Many of these companies have also decried the lack of support from the federal judiciary for the services they offer.
Among the concerns voiced by the judiciary is that by electronically sharing and storing confidential case and party information contained within sealed court documents, attorneys risk running afoul of the attorney-client privilege, effectively destroying it by waiver. This issue becomes particularly salient if the vendors distribute or disseminate the information contained within sealed documents – and attorneys should always be vigilant about ensuring that the parties with whom they share information will keep that information secure.
But before eschewing any and all docket services vendors – companies that have tremendously improved access to justice through substantially reducing the cost of legal services and providing greater access to court records – there is reason to believe that this may not be an issue after all.
The Agency Theory
Even when privilege attaches to an attorney-client communication, exposing the communication to a third party can destroy the privilege by way of waiver. The concern, then, when it comes to docket services vendors is that subjecting a privileged communication to a third-party platform, even if an electronic one, operates as a waiver that destroys the privilege.
However, common law agency theory presents a noteworthy qualification. One of the well-known exceptions to waiver of the attorney-client privilege is the “in furtherance of” justification, meaning that attorneys may share otherwise privileged materials with a third party in furtherance of providing their legal advice or services. In this way, the third party who receives the information becomes an agent, or extension, of the attorney.
In some states, this agency extension of the attorney-client privilege has been codified into statutes or explicitly enumerated in case law. For instance, as a Pennsylvania court acknowledged in Commonwealth v. Noll, communications between clients and individuals who assist attorneys in providing legal advice are protected by the attorney-client privilege. As the Court notes, “where legal assistance is rendered by an agent of an attorney, communications are permanently protected from disclosure by the agent, the attorney, or the client, unless waived by the client.”
Similarly, the Minnesota Supreme Court has recognized the importance of acknowledging and making exceptions for persons who operate as attorney-extensions in transacting business. In the 1908 case Hillary v. Minneapolis St. Ry. Co., the Court recognized that attorneys rely largely on assistants, associates, and courthouse clerks to manage their workloads and as such, it makes little sense to reserve the privilege only for communications between attorneys and their clients. The agency theory was also extended to litigation funding companies in the 2016 case In re International Trading Company, LLC, where the Southern District of Florida protected communications between an attorney and his client with a litigation funding company to secure financing.
If attorneys may clearly share privileged documents and communications with assistants, employees, clerks, and outside vendors while retaining privilege, it follows that they should also be free to utilize docket services vendors without fear of reprisal from the judiciary. These services are useful to attorneys in optimizing their legal services, communicating with clients, and managing workloads. And as access to technology continues to revolutionize the legal field, practitioners are likely to turn to docket services vendors and other legal technology vendors more and more, as they will no longer need to rely solely on PACER as a valuable database for federal court records.
Protecting Privilege While Using Legal Tech
While it is important to preserve and champion the attorney-client privilege, this does not have to come at the expense of legal tech: There are ways to secure the protections of the attorney-client privilege without shunning docket services vendors or other legal technology solutions that make attorneys’ jobs easier, more efficient, and more effective. Here are three examples in particular.
- In any agreement with litigation support and e-discovery vendors, attorneys can and should emphasize that privileged information will be exchanged. The agreement should specifically enumerate each party’s obligation to preserve confidentiality and refrain from sharing the communications with others.
- Practitioners can secure an agreement with opposing counsel during a Rule 26(f) conference to protect privileged electronic materials from discovery.
- Attorneys can, and should, refrain from sharing privileged communications with any other party in order to secure the protection of the privilege.
Preserving privilege in light of new advancements in legal tech is not an all-or-nothing proposition. As creative professionals, attorneys can, and should, find other ways to protect their clients’ interests while still leveraging technology like docket services that increase their efficiency and elevate the client experience.
With any electronic exchange, there is an inherent risk that privileged or sensitive communications may be publicly exposed. Consider, for instance, email threads. The inadvertent “reply all,” the slipshod mistake of attaching the wrong client’s document to an email, and typing the wrong email address all have the potential to leak sensitive client information and destroy privilege, yet these are mistakes virtually every attorney has made. However, it would be an absurd conclusion to require attorneys to return to the quill-and-ink approach and to ban any and all electronic communications because they could jeopardize the attorney-client privilege. It is part of an attorney’s job not only to find creative ways to protect her clients, but also to engage with new technologies that enhance their work product, cut costs, secure better results for clients, and positively change the legal profession.
Nonetheless, it is critical for attorneys who utilize docket services vendors to ensure that sealed documents are not inadvertently released to the public. While attorneys need not fear technology as the ruination of client protections, it is all the more important in the digital age to take precautions to keep private information private.
Why This Matters
As technology advances and attorneys utilize docket services vendors to store and manage information, privilege issues will continue to arise. But perhaps more concerningly, the judiciary’s warning creates a tension in light of the growing trend among practitioners to gain and leverage technological competency to improve their practices. Specifically, state bar associations in 35 states have adopted rules requiring lawyers to maintain competence in technology to both guard against risks and to ensure they are providing their clients with optimal legal services. This growing call for heightened technological proficiency among lawyers highlights the questionable nature of the judiciary’s cautionary warnings, showing how unrealistic and potentially unfounded they are in light of the day-to-day reality of practicing law in the technological age.
Vendors seeking to organize court records on a more user-friendly interface are making tremendous strides in improving access to justice, and are not only making attorneys’ jobs easier, but are also making the law accessible to consumers and lay people who are most impacted by it. As practitioners and laypeople continually turn to docket services platforms for access to court records, the judiciary’s warnings will start to ring hollow.