How Internal Communications Affect Litigation Privilege
The topic of effective legal communications is broad, but the exchange of information between lawyer and client is one of the most crucial aspects of the attorney-client relationship. Technological innovations continue to change the practice of law, requiring lawyers to adapt and balance ethics, practice management and client service.
Ask any lawyer, and they will likely list confidentiality and the attorney-client privilege as top concerns in client communication. Both of these concepts are often grouped together as privilege or privileged communication, although there are some key differences between the terms. Regardless of technical legalese, clients expect their conversations with a lawyer to be private and held in confidence.
There is another side to privilege, however, beyond the two common definitions, which further expands beyond the attorney-client relationship. This concept of litigation privilege internal communication refers to protected emails, voice calls and other forms of communication that occur while litigation is pending. Modern communications tools, such as those used in unified communications (UC), can impact litigation privilege, just as they can help law firms secure client confidentiality. Let's take a closer look at litigation privilege internal communications, and explore the role UC plays in this area of legal practice.
Litigation privilege internal communications explained
Unlike client confidentiality and the general concept of attorney-client privilege, litigation privilege only arises around active court cases. Also referred to as the "work product privilege", litigation privilege protects crucial communications relating to legal proceedings from discovery or compelled disclosure. Discovery and disclosure are two methods used in modern litigation to streamline case preparation. While exciting as a plot point of a Hollywood movie, the legal system does not like "smoking guns" and surprise testimony. Accordingly, rules of civil and criminal procedure set forth methods for each side to obtain documents and other materials from their opponents.
The litigation privilege protects attorney work product, which can include trial strategy and advice to clients, from disclosure. Since almost all other forms of communication are discoverable, it is crucial for firms to adopt internal communications practices that are organized and mindful of the potential hazards of mistaken disclosure. During active litigation, most any communication between an attorney and client will be deemed privileged, but sharing information with those outside of the attorney-client relationship can render the information non-privileged and therefore discoverable.
Unified communications as a legal information management tool
Privileged communication has always been narrowly defined by courts. Some believe that advances in communication technology have further whittled away at privilege, simply through the manner in which new technologies have facilitated open communications. If, for example, a corporate employee were to inadvertently copy someone outside of the organization on a litigation-related email, one might be able to argue that the information is no longer confidential or privileged. So, there is a level of risk that requires lawyers and law firms to balance the business need for communications solutions and the ethical and legal requirement to maintain confidentiality.
Unified communications solutions can, however, be tools for creating a communications policy that avoids inadvertent disclosure. While multi-channel communications can be a benefit for many businesses, lawyers should exercise caution and limit discussions on some platforms, such as social media. It may seem obvious to a lawyer that the details of a case should not be discussed openly on, say, the firm's Facebook page, but clients might not know that their comments may be viewed by others who follow the page.
Although unified communications can enable a variety of multiple channels for connection and engagement with a client, these solutions also allow for greater levels of control. 8x8's unified communications solutions, for example, allow attorneys to leverage advanced fortune-500 features such as conferencing, online faxing, web conferencing, smartphone apps and find-me, follow-me call forwarding. But 8x8's secure and compliant approach ensures that only appropriate channels are used for privileged communications.
With 8x8, a lawyer can tailor their system so certain workflows are seamless, while others might be more rigid when necessary. 8x8's security options also help firms utilize unified communications while simultaneously protecting client data from being compromised. Between security and customizable unified communications, attorneys can manage their case information and protect work product.
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.