Attorney client privilege

Technology and Privilege | A Double-Edged Sword

Immediation response to new ABA opinion: 'Reply all' in electronic communications can imply consent, new ABA ethics opinion says

Last week, the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility released a formal opinion which recommended that lawyers avoid copying clients on emails sent to opposing counsel.

Reply all

The ABA said that where the sending lawyer consents to such communications, the receiving lawyer who responds with a “reply all” message is not attempting to pry into confidential lawyer-client communications. The burden of determining consent and who can be included in a response should not be on the recipient but on the senderThis is about privilege.

The new opinion means that if the receiving lawyer responds to a group email or text with a “reply all”, and includes the sending lawyer’s client, he/she will not be in violation of the ABA’s Model Rule 4, which prohibits lawyers from communicating about a matter with another represented person unless that person’s lawyer consents.

The ABA noted that “reply all” is often the default setting for certain mail platforms, and that group responses to all email addresses have become the norm in electronic communications.

It advised that to avoid this potential scenario, the better practice would be for lawyers “not to copy the client on an email or text to receiving counsel”, but to forward messages separately to their client.

This is clearly sound advice. It is also a timely reminder that technology can, occasionally, jeopardise the exchange of confidential or privileged communications; and that to avoid the such eventuality, it would be better for us humans to override it.

The flip side to this, however, is that, in many cases, technology can actually be used to protect against these very same risks to confidentiality and privilege.  

It is becoming increasingly clear to lawyers, especially those in the field of dispute resolution, that secure, best-practice technology can in fact minimise the risk of complications arising. Technology is constantly evolving, and purpose-built platforms, such as Immediation, automatically put restrictions and systems in place to ensure the security and privacy of not only the participants but also all of the information and documents associated with a matter. 

Choosing the right technology is therefore of paramount importance. Operating in a remote and virtual environment is now the norm inside and outside the legal world – for firms and clients.  To this end, it is imperative that all lawyers consider the technology they use to ensure a robust and secure process which protects them and their clients. It is no longer acceptable just to rely on mainstream technologies which have been designed simply for everyday use, and not for legal practice. The ABA’s opinion has brought this into sharp focus once again.

This very idea was recently echoed in an interview by Louisana Justice Scott Schlegel in his interview with Law.com. To paraphrase his quote: lawyers are not technologists and technologists are not lawyers. This reinforces the need for technology products like Immediation purpose-built to serve the legal environment.

Author: Joseph Panetta, Global Chief Marketing & Innovation Officer of Immediation

Joseph Panetta

Also read top viewed Ai Legal article: The Role of AI in Legal Research.

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