The Expert Communications Privilege Explained
In the legal field, consulting experts is common and typically these individuals' communications with the attorneys who consult them are considered to be privileged or protected. This means courts can't necessarily use those communications. These experts may have a right to their conversations staying private if the conditions necessary for the privilege are in effect.
What is Expert Communications Privilege?
The purpose of the privilege is to protect the communications between people in relationships protected by the law. This allows them to share confidential information that could be of a self-incriminating nature. Most commonly, privileged conversation refers to an attorney-client context, although married people, doctors and their patients, clergy and members of congregations, and others in similar relationships are often covered by privileged communications as well.
In practice, privilege means courts can't use private communications between these individuals as evidence against them in proceedings. This offers some protection, privacy, and space for personal thoughts and agency in defending oneself legally.
There are three conditions that have to be met for communication to be privileged:
- Protected, legally-recognized relationship: For instance, the relationship between an attorney and client.
- Private conversation kept in the context of the protected relationship: The privileged communications must happen between the people in the protected relationship.
- Private location: The setting for the conversation must be in a private place. The expectation of privacy must be there. If the information is shared outside the private location, that does violate and destroy the conversation's privilege.
If one of these conditions is violated, then the conversation isn't privileged. Even if it is a conversation between an expert and an attorney, the conversation is no longer protected and may be retrieved for later reference by the court.
Whenever experts act as an extension of attorneys, their communications are usually considered privileged. Under some circumstances, attorneys consult experts but no confidential information is provided to the expert. If the expert's contribution isn't part of the attorney's legal advice, then it's probably not privileged---it's not in the attorney-client context. If the purpose of having the expert is to make the attorney's job possible or enable the attorney to communicate with the client, then expert communications privilege will probably be upheld by the law.
How Does Expert Communications Privilege Relate to CCaaS, UCaaS, and VoIP?
Protecting privilege is a priority for law firms and other organizations using contact center and VoIP services. In order to continue using expert witnesses, law firms need to be able to assure potential experts that agreements will be adhered to and that proper protocols will be followed for keeping communications secure. Legally-protected communications have a different status from other communications, and law firms understand and acknowledge that.
Many organizations, including law firms, rely on CCaaS (Contact Center as a Service) systems and UCaaS (Unified Communications as a Service) to run their communications operations and stay connected. The system itself is a conduit for communications and doesn't violate communications privilege. This is because communications systems facilitate the conversation and are not a party to it.
As such, law firms can safely use communications systems, even with privileged conversations. They don't have to wait for in-person conversations necessarily. Although, to make sure their communications are recognized as privileged, it does help if they are clearly labeled as such. Emails, for instance, may start with something to preface the conversation as legal in nature---"You've asked for my legal advice about..." may be a good way to start new communications. If you can, you should clearly separate privileged topics from non-privileged conversations. Consider the possibility that any conversation with an expert, even if they normally work with you in a privileged context, may have a conversation with you that could later be revealed to a broader audience.
Protecting Your Communications and Staying Compliant
Maintaining compliance in communications is important for organizations. Protecting compliance requires treating communications correctly, using adequate security and privacy measures, and doing more to keep communications out of the wrong hands.
When it comes to ensuring legal communication, 8x8 provides reliable and compliant cloud solutions at a demanding level rarely seen by other cloud providers. Don't take your chances with a subpar cloud-based telecom system. Call 1-866-879-8647 or fill out an online form to request a no-obligation quote from an 8x8 product specialist.