Are You Maintaining Privilege When Using Zoom?
Are You Maintaining Privilege When Using Zoom?

Generally, many U.S. jurisdictions protect confidential communications between attorneys and their clients—attorneys and their clients cannot be forced to testify to these confidential communications and only the client can waive this privilege, unless the privilege is broken by some other event. Attorney-client privilege is broken when the confidential communication is shared with a third party, unless the third party is indispensable to the lawyer giving legal advice or facilitates in the lawyer giving legal advice (e.g., a client’s accountant present when the client is explaining their complex tax situation to the attorney).

Video conferencing platforms like Zoom, BlueJeans, and Microsoft Teams have become commonplace during the Covid-19 Pandemic. While these tools are incredibly useful, as an attorney, it is important to use them responsibly and in-line with ethical obligations when communicating with clients.

It is critical to take every reasonable measure to prevent third parties that are not facilitating in the lawyer giving the client legal advice from having access to the conference. Here are a few helpful tips for preserving privilege and limiting third-party access to privileged communications.

First, make sure that only those parties who are supposed to be attending a video-conferencing session can see or hear the conversation. It is preferably that everyone is in a private physical space, such as a room or office, and using headphones to keep other people, including family members, from seeing or hearing the communication.

Second, it is as important to be on a private network as it is to be in a private physical space. Ideally, public WIFI should not be used to access the Internet for privileged communications. If possible, use a virtual private network (VPN) service, one that will not collect your personal data, to limit unwanted outside access to the communication.

Third, prevent unwanted outside access to the communication by always requiring a password to access the video conference. It may be useful to send the password separately from the invitation. This will help to prevent strangers from unceremoniously dropping in on conversations. The host should only admit recognized names into the video conference and should require all parties joining to identify themselves. If any unknown parties do join, the host should immediately end the meeting.

Fourth, make sure that recording is disabled before the meeting starts, or at least configured so that the attorney is the only one allowed to record. One should be cautious with recording privileged communications of video conferences because if the recording is accidentally shared with a third party, or if proper measures are not taken to ensure that the recording is secure from a third party (e.g., either in the cloud or locally), this may break the privilege.



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