Communicating privately with your attorney is a fundamental legal right. How can it be done privately and securely? Skiff explains...
Attorney-client privilege is a cornerstone of the American legal system. It is a legal right that encourages full and frank communication between attorneys and their clients, and ensures that clients can feel confident that their discussions with their attorneys will remain private.
Attorney-client privilege applies to numerous scenarios during legal proceedings, discovery, and trials. As a result, it’s critical that defendants and attorneys understand how to ensure communications remain protected, secure, and confidential.
Today, the problem of understanding when the privilege applies has become increasingly complex. Decades ago, cell phones led to initial questions on when conversations were considered privileged; today, electronic communications have become the norm for clients and their law firms to communicate, leading to complexity around who may have access to privileged emails or texts.
In this blog, we’ll begin with a detailed overview of what attorney client privilege is and when it applies. We’ll also cover the critical cases where clients may waive attorney client privilege, either explicitly or through inadvertently disclosing sensitive information. From there, we’ll give examples of communications where a defendant may have an expectation of privacy and explore how the correct technological tools will ensure that sensitive information remains privileged and confidential.
What is attorney client privilege?
Attorney-client privilege is a legal principle that protects communications between attorneys and their clients. The principle is based on the belief that attorneys need to be able to freely communicate with their clients in order to provide effective legal representation. The attorney-client privilege is a part of the larger concept of lawyer-client confidentiality.
The attorney-client privilege is not absolute, however. There are certain circumstances in which the privilege may be waived, or may not apply at all. For example, the privilege may be waived if the client puts the attorney’s advice at issue in a legal proceeding. Additionally, the privilege may not apply if the attorney is suspected of committing a crime or if the client intends to commit a crime.
There are also a few other circumstances where the attorney-client privilege may not apply. For example, if the attorney is working for a criminal defense lawyer and the client confesses to a crime, the attorney may have to testify about the confession in court. Or, if the communication between the attorney and client is overheard by someone else, the privilege may not apply.
Despite these exceptions, the attorney-client privilege is a vital part of our legal system and is essential to ensuring that people can seek legal advice without fear of their discussions being made public.
Why do privileged communications matter?
Since the dawn of the Internet, people have been able to communicate with one another in ways never before possible. With the click of a mouse or the tap of a touchscreen, we can instantly connect with friends, family, and colleagues from all over the globe. But as convenient and useful as this instant connectivity is, it comes with a major downside: a loss of privacy.
Most of us are aware that our online activities are being tracked by corporations like Google and Facebook. But what many people don't realize is that the government is also watching our every move online. In 2013, the NSA was revealed to be collecting the phone records of millions of Americans. And more recently, it was revealed that the NSA has been collecting the online communications of Americans as well. This mass surveillance erodes our privacy in a fundamental way. It means that the government can track our every move online, and, in certain cases, potentially read our private communications.
This is a huge problem, because privacy is essential to freedom and a functioning judicial system. Privacy allows us to freely express our opinions and thoughts, without fear of reprisal. It allows us to engage in sensitive and confidential discussions, without worrying that our words will be used against us. Without privacy, we cannot have truly free and fair elections.
In the legal system, privacy is a fundamental need and expectation for communications between attorneys and clients.
Privileged communications are communications between a lawyer and a client that are protected from disclosure. The attorney-client privilege is a type of privileged communication that is recognized by law and protects certain confidential communications between a lawyer and a client from being included in a discovery process. It also applies in a context where a lawyer could be compelled to testify under oath, potentially against their client.
Importantly, the privilege can only apply when an attorney-client relationship exists. In other cases, such as when an attorney could be asked to provide advice, the privilege may not exist. However, it may still apply to conversations between a client and their prospective attorneys - for example, if a client consults many different law firms in the process of selecting a defense attorney.
Evidently, the privilege is built on important but somewhat vague legal doctrines, where it may not always be patently clear where the privilege applies or when it does not. In the following section, we’ll explore cases where attorney client privilege applies due to a client’s expectation of privacy.
An expectation of privacy?
There are many cases where a defendant may, either explicitly or implicitly, waive attorney client privilege. This includes situations where a defendant loses a “reasonable expectation of privacy,” such as speaking in a loud voice where others may overhear a particular conversation. Alternatively, using a cell phone in a public place where other individuals could overhear privileged information may lead to a defendant unintentionally waiving attorney client privilege.
Waiving this critical privilege may also happen in many more scenarios. For example, if a defendant is having a conversation with an attorney inside a jail with other individuals (including law enforcement) around, they may not have an expectation of privacy for their client information. Another present individual, whether a member of the public, another resident of a jail, or law enforcement, may receive a subpoena or volunteer to testify.
This yields significant complexity in the context of email communications between lawyers and their clients. For example, if a client is communicating using an email account, and the email plaintext passes through additional servers, does the client retain an expectation of privacy for confidential information?
The stakes are incredibly high: Imagine if a client provides incriminating information in a message sent via Gmail, or a personal email account, that goes to their lawyer’s professional email address. Does an individual have an expectation of privacy over the content of this email? What about a subject line? What if they are using a professional email address?
There is no legal consensus on this matter. However, it has been made quite clear that emails sent using a professional email address, such as one provided by a company and not for personal use, are not necessarily privileged. Given this, it’s conceivable that a client could send critical privileged material to their attorney; then, during a discovery period, it is possible that communication may be ruled not privileged.
Even if a lawyer refused to provide such information during a trial, using unencrypted email providers opens additional loopholes for access to these communications. For example, because Gmail is not end-to-end encrypted, Google could theoretically be compelled to respond to a subpoena and provide the content of such attorney-client communications.
As a result, many attorneys now encourage clients to choose privacy-first communication methods that reduce the chance that any communications could be unintentionally ruled non-privileged. The best defenses include using end-to-end encrypted communication products, such as a privacy-first messenger and email service. When using these products, no technology provider has access to your communications - only you and your attorney - ensuring that your confidential emails remain private during a legal process.
How to communicate privately with your attorney
Use an end-to-end encrypted messenger
An end-to-end encrypted messenger is a messaging app that uses end-to-end encryption to keep your messages secure. This means that only you and recipients can read messages sent back and forth, and no one else - including a technology provider - can access them. This is important because it means that even if someone were to hack into your account or intercept your messages, they would not be able to read them.
Beyond good cybersecurity practices, end-to-end encrypted messengers also fall clearly in the space of an expectation of privacy between a client and their attorney. There are a few different end-to-end encrypted messaging apps available, but some of the most popular ones include Signal, WhatsApp, and iMessage. More and more messaging apps are incorporating end-to-end encryption today, such as Android messenger.
To learn more about end-to-end encrypted messaging products, read our blog covering Signal, WhatsApp, and more. We go into significantly greater detail on how these products leverage end-to-end encryption as well as the metadata or other personal information that they collect.
Use an end-to-end encrypted email product
Emails are perhaps the most widely used method for lawyers to conduct business with clients. They constantly contain sensitive information, attachments, disclaimers, and more - demonstrating a clear need to understand how privileged communications may or may not apply.
End-to-end encrypted email is a secure way to send and receive email messages. The contents of the messages are encrypted end-to-end, so only the sender and recipient can read them (as in the case of an end-to-end encrypted messaging product). This makes it more difficult for third parties to intercept and read the messages, or for a legal system to compel a technology provider to submit an individual’s personal email content.
Popular end-to-end encrypted email services include Skiff, Tutanota, and ProtonMail. All offer privacy-first inboxes and easy-to-use mobile apps. We currently recommend using Skiff due to the end-to-end encryption of subject lines as well as 10 GB of free storage, which is particularly useful for any professional communications.
Keep track of communications, or use ephemeral messages
To build even greater confidence that your communications are private, you may also consider ensuring that they expire after a particular period. For example, Signal Messenger offers disappearing messages that expire after a certain period of time (from minutes to weeks); Skiff offers documents that expire after a period of time.
However, you may note that judges have also recognized that ephemeral communications may hamper in evidence preservation even when attorney client privilege does not apply. As a result, you may consider consulting your attorney on the types of communications that would be used inside an ephemeral messaging product. Communicating using an end-to-end encrypted voice call on Signal is another good alternative to a traditional voice call.
Privacy matters in the legal system because it allows both the defense and prosecution to communicate honestly with counsel. This right to counsel is a fundamental right guaranteed by the Sixth Amendment of the Constitution. This right exists to protect the accused from the vast resources and power of the government, and to ensure that individuals accused of crimes have an opportunity to mount an effective defense. Without the right to counsel, prosecutors could easily steamroll accused individuals, resulting in an unfair trial and potential wrongful convictions.
Attorney client privilege represents a cornerstone of this individual right to counsel by ensuring that defendants can openly and honestly communicate with their legal teams. However, attorney client privilege is by no means absolute - it can be waived explicitly, if a defendant decides he or she no longer needs the privilege, or by sharing confidential information without an expectation for privacy.
As a result, both attorneys and individuals must take care whenever communicating sensitive information. Technology has added additional nuance to attorney client privilege, particularly if individuals are communicating in a public place or using an email product where a technology provider has access to email content. We recommend universally employing good technological practices, such as always using an end-to-end encrypted communication product like Signal or Skiff, and having explicit conversations with attorneys about what information should be kept privileged and confidential. Finally, given ongoing legal ambiguity, we recommend never using a work email address to communicate with a personal attorney, as any information in that email account may fail to be considered privileged and confidential.
End-to-end encryption for messages, emails, and files yields critical privacy protections even outside of a legal context. We highly recommend using end-to-end encrypted communication, note-taking, and file storage products in general and have written blogs on the best products in each space (check out this blog on note taking, and this blog on the best encrypted cloud storage).