Do your clients or their agents use cloud storage for case-related documents?  Do they transmit information using unsecured hyperlinks?

If the answer is yes, your client may have waived its claim of privilege to the stored information. This is the lesson learned in Harleysville, where a federal court in Virginia held that an insurance company waived the attorney-client privilege when the insurer’s investigator used an unsecured account to share claim-related information.

Key Facts in Harleysville

• Insurer’s counsel knew or should have known that the information posted to the cloud account was publicly available because counsel had themselves used the unsecured hyperlink to access and download the claims file.
• As a result, counsel “failed to take reasonable measures to ensure and maintain the document[s’] confidentiality, or to take prompt and reasonable steps to rectify the error.”
• The court analogized the insurer’s actions to “leaving its claims file on a bench in the public square” and warned that if a company chooses to use a new technology, “it should be responsible for ensuring that its employees and agents understand how the technology works, and, more importantly, whether the technology allows unwanted access by others to its confidential information.”

Source: Don’t Let New Technology Cloud Your Legal Judgment, Proskauer commercial litigation blog.

Lessons Learned

As Proskauer points out:

• Attorneys and clients are responsible for their own technological choices as well as those of the client’s agents
• Technological ignorance on the law firm’s part is no excuse

What You Should Do Now

• Conduct a cyber security audit of your firm’s practices and systems.
• Establish a secure system for confidential file sharing if one is not already in place. Address other issues uncovered during the security audit.
• Create file sharing policies and procedures.
• Train everyone now; conduct annual training sessions thereafter.  Address protocols for uploading and downloading files.  All law firm members – attorneys, staff, administration, bookkeeping – need to know the warning signs of receiving or forwarding content from unsecured hyperlinks.
• Talk to clients about file storage and sharing practices.  Do they use agents, like the investigator in Harleysville?  If so, how do they exchange documents? Consider offering an on-site client training lunch to go over dos and don’ts.

All Rights Reserved 2017 Beverly Michaelis