The question raised in Part 1 actually points to an issue that will rear its ugly head as more and more cloud computer services are utilized by businesses to cover data intensive applications from file transfer, storage, disaster recovery, archiving and work collaboration. Can a law firm still claim attorney client privilege if it intentionally and knowingly transmits a communication to a client through a 3rd party provider?

The early opinions are that attorney client privilege is not waived when a law firm provides a third party vendor with access to confidential client information for the purpose of allowing the vendor to support and maintain a computer software application utilized by the law firm. Massachusetts State Bar Association Opinion (issued March 3, 2005). See also Arizona State Bar Association Opinion (issued July 2005).

The law firm’s clients are deemed to have “impliedly authorized” the firm to make confidential information accessible to the vendor in order to permit the firm to provide representation to its clients. This is consistent with California Evidence Code section 952, which provides that the privilege covers information transmitted to persons to whom disclosure is reasonably necessary for "the accomplishment of the purpose for which the lawyer is consulted."

Like email, the use of service providers to manage file transfer will become an accepted way of business life and therefore better understood as simply another communication tool that is necessary to a lawyer providing legal advice. Perhaps the same legal wars will be fought, or perhaps the lawyers that bring these cases have learned from the email battlegrounds. Knowing lawyers as I do, you can bet on the former.

The Opinion also makes the caveat that the law firm must “make reasonable efforts to ensure” that the software vendor selected take precautions to protect confidential client information. This will place on law firms the responsibility to choose vendors who take security as seriously as the law firm.

Did I mention that LeapFILE is the premier Enterprise provider of secure file transfer services?