Most attorneys have encountered this situation: at a meeting with a client, the client shows up with his or her spouse. The spouse is not a client. Normally, what you tell your clients is privileged against disclosure. And what your clients tell their legally-recognized spouses is generally privileged too. But what happens when the two privileges bump into each other?
In sensitive tax matters, the answer to this quandary is the Kovel letter, named after United States v. Kovel. Your tax lawyer hires an accountant. In effect, the accountant is doing your tax accounting and return preparation, but reporting as a subcontractor to your lawyer.
Could this work for other subcontracted service providers? Presumably, although Mr. Wood does not address that potential or whether there needs to be specific case law supporting it as there is for accountants.
The duty of confidentiality owed by lawyers to their clients is one of the foundations of the attorney-client relationship. Generally, this duty is memorialized in ABA Model Rule of Professional Conduct 1.6., which states in part that a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, or the disclosure is impliedly authorized in order to carry out the representation, with certain exceptions listed in Rule 1.6(b).
Recent developments in the law of attorney-client privilege presents new pitfalls for inadvertent waiver by your clients. A large part of clients’ trust comes from the protection of lawyers’ duty of confidentiality and ability to assert the attorney-client privilege. But are your clients inadvertently waiving that privilege and making incriminating information discoverable?
Relying on your e-mail provider’s auto-complete feature can result in privileged information landing in the wrong hands. More importantly, reviewing that privileged information can lead to disqualification.
I recently visited a lawyer client of mine at her office. This particular lawyer shares space and a receptionist with a law firm for whom she also performs some work. When I gave my name to the receptionist, she immediately asked, “Are you related to Harry (not his real name)? He’s a client at this firm.”
I am not, in fact, related to “Harry,” but the receptionist’s question gave me pause. What if Harry had retained the firm on a matrimonial matter? (Matrimonial law was one of their practice areas). What if I were related to Harry (or worse yet, his wife) and Harry had not made public his marital problems or his intention to consult with a lawyer.
But the real question is whether lawyers should trust Google with their clients’ confidential information if this is the attitude of Google’s CEO. His muttering about the Patriot Act makes me wonder if Google is going to act like Yahoo! and Sprint and give it up to anyone with a badge, search warrant or not.
I am not jumping to move all my information just yet, but I am watching carefully to see whether and how Google responds.
When it comes to making decisions in legal affairs, almost every one is important. Many times, clients are either in the dark about what the options are, or incapable of making a decision because of the implications attached. When your client is stuck, try a couple of these techniques to help them out.
Cloud computing, or software as a service (SaaS), means moving your applications from your computer to the “cloud.” It is the difference between Microsoft Word (locally-hosted, since it is on your computer) and Google Docs (remotely-hosted, since it is on Google’s computers).
The most-common objection to using SaaS is the fear of waiving the attorney-client privilege, usually because “free” e-mail services like Yahoo! Mail, Gmail, and Hotmail scan users’ e-mail for keywords to target advertising. But SaaS is an attractive alternative for many lawyers, who would rather not deal with IT themselves or maintain an expensive IT consultant. As a result, many lawyers and law firms are looking at Google Apps, hosted Exchange, and Zimbra as less-expensive alternatives to having a local server.
I use Google Apps, and I am not worried about security, privacy, or waiving the attorney-client privilege. Here is why:
A few months ago, I posted a warning to lawyers about emailing clients at work. My concern was based in large part on a NJ district court decision that found an employee had waived the attorney-client privilege for emails that she sent to her attorney while using her work computer. Although the emails had been sent using a Yahoo! account, the employer found images of the emails on the employee’s hard drive.
Well, the New Jersey Court of Appeals has quickly reversed the decision. Although the opinion starts off as a criticism of the district court for not properly evaluating the factual dispute over whether the employer had properly adopted its computer usage policy, the appellate court went on to proclaim the preeminence of the attorney-client privilege over employers’ computer usage policies.
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