How to avoid disclosure of confidential case info

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Disclosing confidential case information can happen so fast you don’t even realize it’s happening.

That famously happened some years back to an attorney at Pepper Hamilton LLP who was representing Eli Lilly & Co. The attorney meant to email co-counsel about settlement strategy but accidentally emailed a similarly-named New York Times reporter, instead.

Both email addresses were in the attorney’s address book and the “auto-complete” function suggested the wrong recipient.

Though the attorney’s blunder was not made with intent, some courts take a strict view that any disclosure is a waiver of attorney-client privilege.

Wisconsin hasn’t definitively set forth whether it follows that approach, but better to be safe than sorry and take the following steps to avoid any disclosures.

Discuss it upfront

Talk about attorney-client privilege at the start of the representation, and identify the client in the engagement letter, Tyler Wilkinson of Axley Brynelson LLP suggested.

For example, Wilkinson said, when he represents a minor and the parents are paying the bill, he explains that there will be times when he needs to speak to the child, his client, outside their presence — to ensure they won’t be compelled to testify against their own child.

That’s different from when a client wants someone present when meeting with her lawyer, such as the divorce client who brings along her mother for support. In that case, the attorney-client privilege never attaches because the mother is a third party whom the client knowingly wants to be present, Wilkinson explained.

The client should know that she’s taking a risk letting her mother stay in the room. If the case is headed for resolution via negotiated settlement rather than litigation, she’s probably OK. Still, in that instance, from the malpractice-prevention standpoint, the client’s wishes should likely be put in writing.

And, when representing a business and conducting an investigation, Wilkinson said he prefaces every discussion with its employees that their communications with him are privileged. It encourages their candor, but also ensures they understand they shouldn’t talk or otherwise communicate with others about the case.

Label it

Write “privileged attorney-client communication” in the subject line of an email or within the body of the email.

That doesn’t necessarily mean a court will always agree that the communication falls under that category, but it does make it fairly easy to find when later performing a search in advance of a document production, Jane Schlicht of Hinshaw & Culbertson LLP said.

It also means that if it is accidentally produced, opposing counsel will return or delete it, Wilkinson said. Moreover, it reminds clients to keep those communications confidential and not to share them with anyone else.

Tell clients that means these emails shouldn’t be forwarded to anyone, under any circumstances, Nerino Petro, Law Office Management Assistance Program advisor for the State Bar of Wisconsin, said.

“We have a generation of younger adults who really don’t have any concept of what the term private really means,” he said. “They’re used to putting their lives on Facebook and everything else.”

Attorneys should think carefully about what’s put in every single email. Extremely sensitive information, or something that could potentially embarrass the attorney, probably shouldn’t be conveyed that way, ever.

Along these lines, texting clients presents privilege challenges. For starters, it’s hard if not impossible to insert the label in the thread. Moreover, there’s a popular misperception, Petro said, that text messages can be deleted and they’re gone for good.

Be aware of who’s participating in the conversation

In the realm of virtual discussion, with email, again, it can be easy to overlook who is copied and simply “reply all.”

And in actual discussions, be mindful of who’s in the room, Wilkinson said. For example, when doing a witness preparation immediately prior to trial, don’t do so in the presence of all your witnesses/experts, even if your positions and interests are aligned.

Know your technology

It’s critical, Schlicht said, to use scrubbing software on documents when using work for one client as a template for another. Scrubbing software also is imperative if you often let a client review a document and make comments or use electronic post-its before passing it on to opposing counsel.

Know how to encrypt your email, she said, so that if an email does get in the wrong hands, it’s much more difficult for unauthorized access.

Keep privileged documents, whether electronic or paper, in separate folders, Schlicht said.

Laptops and smart phones must be password-protected, so if they’re lost or stolen it will be difficult for unauthorized persons to access the data. Both Apple and Android, and many third-party apps, allow for locating a device via GPS and remote wiping, provided the phone is connected to a network.

And disable that auto-complete function in your email, so you don’t send confidential info to the wrong person.