Preserving Confidential Information in Today’s Digital Age

Practice Areas

By: Mishita Jethi

Advancement in the digital age has dramatically transformed how attorneys engage with their clients. Most law firms, attorneys, and clients today rely exclusively on emails and other social and digital media to communicate information about their cases and about their practice areas. As technology becomes more complex and intertwined with legal representations, law firms and attorneys must take steps to ensure that they comply with the rules of professional conduct and ethics in a manner that includes the latest developments in technology.

The flip side of this equation is that clients also need to be increasingly aware of what should or should not be posted on digital platforms as far as legal transactions are concerned. It has been held that a lawyer or his agent may contact an unrepresented person through social networking site and request to access their personal information. However, it is impermissible to use any form of deceit or misrepresentation to access such information belonging to an unrepresented person.1 Similarly, a client may be advised by their attorney to turn their social media settings to certain visibility, so long as the attorney does not violate the rules of professional conduct.2 This is particularly relevant in terms of preservation or spoiling of evidence.

Clients should be particularly careful about accidently divulging any legal strategy, defense, allegations over social media or even in a private chat to a third party. Courts have held that voluntarily posting or discussing attorney-client privileged communication over social media or even private chat with third party results in waiving the attorney-client privilege.3

Clients should also be aware that courts have started equating virtual presence to physical presence in certain matters. For example, for a subpoena served on Twitter, the court held that that there may be “no reasonable expectation of privacy as to [the] Twitter Account”.4 This is also in-line with a recent case in India, where as Judge allowed summons to be sent through WhatsApp when it became almost impossible to locate a valid physical address for the other party.5 Another court held that if a person’s Facebook privacy settings are set on “Friends”, Government may access the posts through cooperating witnesses who are ‘Friends’ without violating the Fourth Amendment, because there is no expectation that the fiends would keep the profile information private.6

As digital platforms and social media have increasingly become an extension of one’s physical presence, it is imperative that attorneys and clients take adequate steps to preserve and protect confidential information and be mindful of the information posted on social media accounts.

1 NY City Bar Opinion 2010-2 (2010)

2 See N.Y.C.L.A, Op 745 (2013)

3 Lenz v. Universal Music Corp., 2010 WL 4286329 (N.D. Cal. Oct. 22, 2010)

4 People v. Harries, 36 MIsc. 3d 613 (N.Y. Crim. Ct. Apr. 20, 2012)

5 http://www.newindianexpress.com/nation/2017/apr/28/bombay-high-court-sets-new-precedent-serves-summons-via-whatsapp-1598742.html

6 United States v. Meregildo, 883 F. Supp. 2d 523, 526 (S.D.N.Y 2012)

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