Legal ethics and management in the digital age – need for three-pronged approach towards confidentiality, privilege and social media

Payel Chatterjee
Trilegal, Mumbai
payel.chatterjee@trilegal.com

Aman Singhania
Trilegal, New Delhi
aman.singhania@trilegal.com

Digital age – boon or bane?

The rapid growth and expansion of the internet in the 21st century has had an all-engulfing Midas touch, reaching into every aspect of personal, professional and business communication. This has tested the resilience of professional ethics in more ways than one.

Legal practitioners are constantly reminded of the inevitable rapid changes in technology, and the need to quickly adapt and dynamically modify client practices to remain relevant, attract business and accelerate justice delivery processes, while never losing sight of ethical considerations. With the imminent explosion of cutting-edge cloud computing and generative artificial intelligence, it has become increasingly relevant to update what remains ‘ethical’ in the contemporary practice of law.

As the IBA Professional Ethics Committee has expressed at several forums, it is in the interest of the legal profession to contemplate the extent to which technology is incorporated into the practice of law so as to maintain its integrity.[1] As legal professionals increasingly rely on digital tools and platforms, the ethical considerations and professional obligations they face include maintaining confidentiality and client privilege in the omnipresence of social media and engagement on digital platforms.

Confidentiality and privilege – cornerstone of legal ethics

Confidentiality in digital communications is a rising concern for lawyers due to the sensitive nature of the information they deal with every day. The ethical duty to maintain client confidentiality, in particular, has become a hot topic in recent years, with the increasing threat of cyberattacks and data breaches.[2] A recent survey in the United Kingdom revealed that 65 per cent of law firms have been a victim of a cyber incident,[3] with clients being seriously concerned over the level of protection accorded to their sensitive data, a question often discussed while finalising engagement terms.

Confidentiality becomes even more critical for communications protected by legal ‘privilege’ from disclosure in legal proceedings. Attorney-client privilege seeks to protect communications between a client and their attorney made for the purpose of seeking legal advice. However, lack of proper data encryption has made such privileged communication vulnerable to interception or unauthorised access. Concerns have also been raised over the potential for advanced electronic discovery tools to retrieve vast amounts of digital information, including privileged communication, in the course of litigation discovery. Despite such issues, current rules of professional responsibility provide little guidance on standard protocols either to prevent a breach or steps to be taken in case of a breach.

Given these scenarios, it is desirable to identify actionable best practices which can help shape contemporary ethical legal practice.

Key aspects towards effective legal management and use of technology

To this end, we have attempted to suggest some ways in which a modern tech-savvy lawyer can tackle issues of confidentiality, client privilege and safe technological reliance for effective legal management in the digital age:

• legal research and case law;
• utilisation of AI-driven legal research tools to quickly access relevant case law and statutes;
• staying informed about emerging legal precedents in the realm of technology through continuous learning;
• secure communication channels;
• use of messaging platforms with strong end-to-end encryption to ensure that messages are only accessible to the intended recipient;
• utilising virtual private networks (VPNs) to secure internet connections and protect data transmission from eavesdropping;
• data protection and storage;
• storing sensitive client information in encrypted databases or storage solutions to prevent unauthorised access;
• regularly ensuring back up of data using encrypted methods and ensuring that backup files are stored securely, with access restricted to authorised IT personnel;
• implementing strong access controls such as multi-factor authentication (MFA) and restricting access to confidential information to authorised personnel only;
• device security;
• encrypting laptops, smartphones and other devices used for legal work to protect data in case of loss or theft;
• ensuring operating systems and software are up to date with the latest security patches to guard against vulnerabilities;
• use of reputable antivirus and anti-malware software to protect devices from malicious attacks;
• client engagement and secure communication practices;
• creating awareness and helping clients understand the digital aspects of their case and the implications for their legal strategy. For instance, electronic data/evidence maintained by clients must be kept safe, secure and untampered with, and must be verifiable through a properly documented chain of custody, to ensure its credibility and reliability. This is particularly important, for example, in white-collar investigative or regulatory actions. This requires the corporates to ensure they have a robust cyber security policy in place to protect the company’s data and infrastructure, outline the protocols and guidelines that govern cyber security measures and prepare and protect the company against cyber threats and other computer attacks, including by training their employees on measures to be taken when faced with such situations;
• use of secure email communication and verifying the authenticity of links and attachments before opening them to avoid phishing and malware threats; and the use of secure file-sharing and Wi-Fi services that offer encryption and access controls for transferring sensitive documents;
• compliance with applicable regulations;
• compliance with data privacy regulations relevant to the jurisdiction, such as the General Data Protection Regulation in Europe[4] or Digital Personal Data Protection Act 2023 in India,[5] which may impose specific requirements for handling client data;
• developing and enforcing comprehensive policies and procedures for handling and transmitting confidential information electronically;
• adaptability and training;
• invest in regular training for legal teams on new technologies and digital best practices, including both young and senior lawyers;
• be prepared to be flexible and adapt to new tools and methods as the legal landscape evolves;
• best practices and crisis management;
• conducting regular security audits to assess and improve digital communication practices; and
• having a foolproof plan in place for responding to security incidents, including data breaches, to minimise their impact and protect client confidentiality.

Finally, it is imperative to follow confidentiality guidelines and professional standards set forth by the local bar association or legal ethics body, which may include specific recommendations for digital communications.

The aforementioned considerations are aimed to ensure safe transmission of critical data and boost client confidence in the workplace. However, in the digital age, the use of technology extends far beyond the workplace. In particular, the increasing use of social media platforms by professionals across the spectrum, in ways that sometimes blur the boundaries between the personal and the professional, may implicate a range of ethical concerns.

The social media conundrum

The past few years have witnessed several questionable media ‘trials’ resulting in ‘convictions’ in the court of public opinion, prior to any hearing taking place inside the courtroom, let alone a judgment being rendered. Moreover, lawyers themselves are actively seen utilising social media platforms for employment opportunities, business and sharing compelling news and communication, alongside personal opinions and comments. This has led to the need for greater scrutiny as well as mindfulness before content or opinions are shared online by legal practitioners.

The American Bar Association (ABA) Model,[6] prohibits lawyers from sharing information that would create a public perception about the lawyer being admitted to practise law outside of his actual licensed jurisdiction. During a court trial, lawyers are also prohibited from making extrajudicial statements that could influence the public and potentially prejudice the trial.[7] Notably, in India, the Bar Council follows a more conservative view, even prohibiting lawyers and law firms from advertising their practice.[8] In fact, several cases highlight the potential consequences of lawyers failing to adhere to appropriate ethical standards around the use of social media.[9]

Conclusion

Leveraging technology such as data management software, case management systems, digital collaboration tools and electronic discovery platforms has become routine and is necessary for attorneys to navigate complex disputes and remain competitive in today’s legal market. This requires a minimum level of technological competency. For example, as one jurist has commented ‘[i]t should now be a matter of professional competence for attorneys to take the time to investigate social networking sites.’[10]

However, with these powerful tools comes greater responsibility for attorneys to ensure compliance with ethical standards in their digital communications and whenever they store or transmit data. Law offices and law firms must consider adopting workplace policies on the use of personal devices, social media platforms and secure data servers.

The rules of ethics will keep evolving to meet the challenges of the digital age but, pending the development of more specific guidelines in their respective jurisdictions, practitioners must remain committed to the time-tested cardinal values of confidentiality, privilege, moral duties, candour and professionalism.

Notes