Archives: Attorney-Client Privilege

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Legal Implications of Cloud Computing — Part Five (Ethics or Why All Lawyers-Not Just Technogeek Lawyers Like Me-Should Care About Data Security)

So, you thought our cloud series was over? Wishful thinking. It is time to talk about ethics. Yes, ethics. Historically, lawyers and technologists lived in different worlds. The lawyers were over here, and IT was over there. Here's the reality: Technology - whether we are talking cloud computing, ediscovery or data security generally - IS very much the business of lawyers. This post focuses on three recent documents, ranging from formal opinions to draft issue papers, issued by three very prominent Bar associations -- the American Bar Association (ABA), the New York State Bar Association (NYSBA), and the State Bar of California (CA Bar). These opinions and papers all drive home the following points: as succinctly stated by the ABA, "[l]awyers must take reasonable precautions to ensure that their clients' confidential information remains secure"; AND lawyers must keep themselves educated on changes in technology and in the law relating to technology. The question, as always, is what is "reasonable"? Also, what role should Bar associations play in providing guidelines/best practices and/or mandating compliance with particular data security rules? Technology, and lawyer use of technology, is evolving at a pace that no Bar association can hope to meet. At the end of the day, do the realities of the modern business world render moot any effort by the Bar(s) to provide guidance or impose restrictions? Read on and tell us - and the ABA - what you think. … Continue Reading

Privacy, Privilege, and the Cloud, Oh My: Taking LovingCare to Heart

What does workplace privacy have to do with the cloud? Everything. On Tuesday, the New Jersey Supreme Court issued its opinion in Stengart v. LovingCare Agency, Inc., --- A.2d ----, 2010 WL 1189458 (N.J. March 30, 2010), and came out on the side of protecting employee privacy and the attorney-client privilege in personal Yahoo! webmail (a cloud service) even though the employee used a company computer. While everyone has been busy writing about the implications of LovingCare for company policies governing employee expectations of privacy (and for good reason), few have stopped to note that LovingCare is a cloud case. LovingCare is one of only a few published opinions addressing the difficult issues surrounding employee use of webmail and other cloud services on company computers where the attorney-client privilege is at stake, and the impact of the LovingCare decision will undoubtedly be felt for years to come by nearly every employer across the country, both in crafting policies for employee use of company computer systems and in conducting discovery in nearly every employment-related litigation. The machine may be the employer's, but, in the post-LovingCare world, the data may be the employee's - at least where the cloud and the attorney-client privilege are involved. You can read my detailed case analysis in this post. … Continue Reading