Restatement to the Rescue: 20-Year-Old Treatise May Help Ease Work-at-Home Privilege Problems
In a time of crisis, thoughtful lawyers look for ways to apply pre-existing authority to evolving situations. Since so many lawyers and clients are now communicating with each other from their homes, the COVID-19 pandemic presents such a time with respect to the protection of attorney-client privilege.
For lawyers who have long since set themselves up to operate on a "virtual" basis and for clients who have developed sophisticated systems for assuring confidentiality, there may be no change. But what about the rest of us who now find ourselves or our clients communicating while regularly surrounded not only by household pets but also by children, relatives, and spouses or partners – with little or no guarantee of "private" space or time? This is where the 20-year-old §71 of the Restatement of the Law (Third), The Law Governing Lawyers (2000) can provide some helpful advice.
An Appropriate Illustration or Two
It is known that a reasonable expectation of confidentiality at the time of a communication between attorney and client must exist before a communication can be potentially considered for privilege protection. See, e.g., Geoffrey C. Hazard Jr., W. William Hodes & Peter R. Jarvis, The Law of Lawyering §10.07.9 (2019-2 Supp.). It is also known that a communication must be treated as confidential after it is made or privilege protections may be lost. Id. So what happens if, say, a lawyer and a client are communicating by phone with each other from their dens and either of them is concerned that others in the house who are in an adjacent room may be able to hear their conversation? Illustration 1 to Restatement §71 provides an answer from the lawyer's point of view. As long as the lawyer "reasonably supposes" that individuals located in adjacent rooms can hear only the sound of voices and cannot make out individual words, privilege should be protected on the attorney side. Presumably, privilege is equally protected on the client side if that is the client's understanding as well.
But suppose that some, but only some, words may be intelligible to others who are sometimes in the same room and sometimes not? In that context, it may still be appropriate to say that sufficient confidentiality has been maintained. At least on the attorney side, this is analogous to a situation in which one lawyer asks another lawyer for assistance based on a hypothetical example and without disclosing sufficient specifics to link the lawyer's question to a specific client situation. Under Restatement §71, attorney-client privilege would not be waived if all that individuals near the attorney hear are words like "corporation" and "the case" rather than proper nouns that identify parties in specific situations. And although it might seem that anyone listening in on the client side would at least know who the client is, they may not be in a position to listen to or understand enough of the conversation to know the specifics about what caused the client to ask for legal advice or any of the advice given. See also Illustration 3 to Restatement §71.
Finally, Comment c to Restatement §71 also informs us that:
Confidentiality is a practical requirement. Exigent circumstances may require communications under conditions where ordinary precautions for confidentiality are impossible. The privilege applies if the communicating person has taken reasonable precautions in the circumstances.
Takeaways and Considerations
Translated to the age of COVID-19, this can fairly be taken to mean that neither lawyers nor their clients can immediately be expected to go as far in protecting the confidentiality of their client communications from home as they used to do from the office.
Nonetheless, two limitations must be noted. One is that steps that can reasonably be taken now (such as using a password-protected email account and not leaving confidential documents on a table where they are readily accessible to others) should be taken now. The other is that the duties that lawyers have to protect communications on their end and to advise clients about risks to confidentiality on the client end may well grow if and when it appears that lawyers and clients will remain working from home for a prolonged period of time. One can only hope for many reasons that this does not happen.
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