Understanding Privileged Communication in VoIP

Many people are familiar with the phrase "attorney-client privilege." Consumers of legal services expect not only the courtesy of discretion but rightly believe that laws and ethical rules protect their information from disclosure. Not all communications between an attorney and client are privileged, as there are various exemptions and provisions for waiving privileges.

Many people use the term privileged communication interchangeably with attorney-client confidentiality. While these two concepts are similar, how they are applied in the practice of law is quite different. Law firms and individual lawyers are increasingly leveraging technology to improve communications, which raises questions about how innovations in unified communications impact both privilege and confidentiality. What is privileged communication and how does it relate to unified communications and Voice over Internet Protocol (VoIP) services?

How the Attorney-Client Relationship Protects Information? 

The relationship between a client and an attorney is critical to effective representation. A client should feel able to confide in an attorney. Let's explore the differences between confidentiality and privilege and how the two concepts can be impacted by modern communications tools.

Privileged communication specifically refers to evidence rules — the guidelines for presenting information in a trial or other stage of a litigation. Under the evidentiary rules of most jurisdictions in the United States, information shared between a client and attorney is protected from forced disclosure. In a trial setting, a party's lawyer generally cannot be required to testify against or in support of the case. These protections can be waived, so it's possible for the information to be disclosed. However, there are very few instances where this disclosure can occur without a client's consent. Some examples of privileged communication in an attorney-client relationship include:

  • Statements made in a criminal defense case
  • Negotiations in a business matter
  • Any other communication that is part of an attorney-client relationship

This last bullet point is crucial since statements made to a lawyer are not privileged if there is no attorney-client relationship. The rules vary on how an attorney is formally engaged, but normally it requires a retainer agreement and a "meeting of the minds" that the attorney is representing the client.

Attorney-client confidentiality is a different concept. With confidentiality, a client has an expectation that their communications with an attorney will be kept private, and if an attorney discloses information without consent, it is a breach of an ethical duty. As an ethical guideline, confidentiality protects the attorney-client relationship.

A simple example of a confidentiality breach would be an attorney discussing the details of a client's personal affairs with another client. Attorney-client confidentiality can be broader than privilege, as it generally prohibits an attorney from disclosing any information from the client or about the client that is derived as part of the attorney-client relationship.

Protecting Privileged Communication and Confidentiality Through VoIP

Another example of a potential breach of confidentiality would be if a lawyer or law firm used communications tools that were not secure. If prying eyes and curious ears could read and listen to conversations between a lawyer and a client, the information would be unwittingly disclosed and a client's trust in their attorney would be eroded. In the case of leaked or compromised client communications, there can be implications for attorney-client privilege as well. If the information is disclosed to a third party, it's possible that the information will lose its protection as privileged communication in a court proceeding.

Legal ethics rules have evolved in many jurisdictions to encompass the multiple channels of electronic communication in modern legal practice. The American Bar Association's Model Rules, which provide ethical guidance for attorneys, now state that the attorneys should not only be competent in the legal areas in which they practice but also in the technologies used for communicating with clients. In other words, lawyers can avail themselves of modern communications tools but need to ensure that technology follows data security practices.

Luckily, services such as contact center as a service (CCaaS), unified communications as a service (UCaas), and VoIP software provide not only multi-channel means of communication but also enterprise-level cloud security. 8x8's unified communications can be tailored specifically for the legal profession, so lawyers can stay connected with clients in the cloud and elsewhere without relinquishing security over privileged and confidential information. With best-in-class data security from 8x8, you can rest assured that you have satisfied the competency requirement of legal ethics.

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.

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