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Protecting Privilege in the Age of Zoom

As we work in new settings and rely more upon the technologies of remote communications, understanding the purpose of the attorney-client privilege and the way courts have handled issues of privilege in the past can help inform best practices in the era of COVID-19.

Perhaps the biggest change in the legal profession caused by the coronavirus pandemic is the necessity of working from home. Conversations that normally would occur in the privacy of an office now take place in a kitchen, spare bedroom or basement “office,” with family members, particularly children, or a housekeeper moving about the house.

Although the pandemic has not changed the law around issues of privilege—at least not yet—how one acts to establish and protect privilege should change. As we work in new settings and rely more upon the technologies of remote communications, understanding the purpose of the attorney-client privilege and the way courts have handled issues of privilege in the past can help inform best practices in the era of COVID-19.

Not every conversation between an attorney and client is privileged. The attorney-client privilege exists to protect only those communications that are confidential and made for the purpose of legal advice. In re Keeper of Records (Grand Jury Subpoena Addressed to XYZ Corp.), 348 F.3d 16, 22 (1st Cir. 2003). The most important factor in determining whether a communication is confidential is whether the parties reasonably expected the conversation to be confidential.  See, e.g., United States v. Bigos, 459 F.2d 639, 643 (1st Cir. 1972). A conversation held in public may be considered privileged if the parties’ behavior demonstrates an intention and effort to maintain confidentiality. Alternatively, a conversation held in a more private location, but without concern for potential bystanders, may not be considered confidential. For example, if a client has a telephone conversation with her attorney while in her own office, but takes no steps to ensure the privacy of the conversation by closing the door or speaking in a lowered voice, a bystander who overhears the conversation may be permitted to testify as to the content of the communication. Even if the unrelated person does not actually hear the content of the conversation, just his or her presence and the participant’s lack of effort to maintain confidentiality can destroy the expectation of confidentiality. State v. Cascone, 487 A.2d 186, 191 (Conn. 1985).

How the parties can demonstrate an expectation of confidentiality, however, is dependent upon the circumstances surrounding the conversation. There may be situations where the presence of a third party is necessary for the client’s well-being or legal interests: a parent may need to accompany a minor client, or a nurse might be present if the conversation takes place in the hospital.  See, e.g., Hofmann v. Conder, 712 P.2d 216 (Utah 1985); 1 McCormick on Evid. § 91 (8th ed. 2020). Similarly, if communications with the client require an interpreter, the presence of the interpreter would not destroy the privilege. See, e.g., People v. Osorio, 549 N.E.2d 1183 (N.Y. 1989).

In some situations, courts have found that the presence of a third party does not destroy the privilege, because other circumstances indicate the parties’ intention that the conversation be confidential. In In Re Sealed Case, for example, a conversation between an attorney and his client was held privileged, even though it took place on an airplane. 737 F.2d 94, 101 (D.C. Cir. 1984). Though the conversation occurred in public, with other people nearby, the court noted that the parties treated the conversation as confidential: the two individuals were seated next to each other and spoke in appropriate “tones,” so as not to be overheard. Id.

While the courts have not yet addressed privilege problems that may come up while an attorney is working from home, one does not have to stretch the facts of existing case law too far to imagine the potential risks. Taking a call on speakerphone may be more convenient, but it increases the likelihood that an unseen family member might overhear the conversation.  Communicating with a client by Teams or Zoom might be preferable, because it allows for face-to-face contact, but it could also allow unrelated parties to pass in and out of earshot of the conversation without the client’s knowledge. At the same time, it may not be possible to achieve absolute privacy while working from home. As it seems increasingly likely that many attorneys will be working from home indefinitely, developing best practices now can help prevent problems later.

Both the attorney and the client should take steps to demonstrate and maintain the confidentiality of legal communications, as follows:

1. To the extent possible, conversations with clients should take place in a private location, away from others to avoid even accidental eavesdropping.
2. If, because of the practicalities of where you are, much of your day-to-day work has to take place in a shared area, such as a kitchen, be conscious of the need to move somewhere else for attorney-client communications.
3. At the beginning of a communication, the lawyer should remind the client about the need to maintain confidentiality. The lawyer may, for example, ask the client to confirm that no one else is in the room with him or her, or within earshot.
4. The lawyer and client also should be aware of people coming into a room or within earshot during a communication. If this happens, the attorney-client communication should be paused.
5. Using headphones or earbuds during a call or Zoom meeting may be better than using a speaker. This can help show that the parties are conscious of the need to avoid other people overhearing conversations.
6. If you do have to use a speakerphone, talking in hushed tones can reduce the risk that someone else will overheard the conversation and demonstrate the parties’ intention to keep the conversation confidential.
7. If you are in a room with a door that can be closed, close it. In some situations, it may not make much practical difference, if, for example, your spouse/partner is out and you are the only person in the apartment; but, if you do this regularly, it is a further demonstration of your intention and practice of keeping communications confidential.
8. When working with documents that include privileged information, ensure that they are stored away where others cannot see them. Do not leave them in common spaces or out in other places frequented by members of your household.
9. When leaving your computer or other workspace for an extended period of time, lock your computer screen. This ensures that privileged information or communications are not accidentally seen if a family member wants to use your device.
10. If using a smartphone, ensure that the Bluetooth settings are turned off, to avoid accidental pairing with a speaker in your home. What may seem to be a private conversation to you could be unexpectedly transmitted through a speaker or sound system.

The ability to communicate with clients and continue to provide counsel during the COVID-19 pandemic is imperative. Taking a few simple precautions to ensure that client communications are as confidential as practicable will ensure that legal privileges are established and maintained and that problems—e.g., litigation, down the road are avoided.

“Protecting Privilege in the Age of Zoom,” by William E. Lawler III, Joseph G. Poluka, and Taylor K. Lake was published in The AmLaw Litigation Daily on September 15, 2020.

Reprinted with permission from the September 15, 2020, edition of The AmLaw Litigation Daily © 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or reprints@alm.com or visit www.almreprints.com.