V. Practical Guidance and Protective Measures

• Library: Professional Responsibility in Litigation (ABA) (2016 Ed.)

V. Practical Guidance and Protective Measures

Given the broad scope of information deemed confidential under ethics rules, lawyers must be vigilant with respect to their obligation to safeguard clients' information. There are a number of common-sense precautions that lawyers can take in a variety of circumstances to decrease the chance of inadvertently disclosing client information and thereby breaching associated duties. Despite the role that technology plays in our professional lives, some of these precautions have little to do with technological savvy. For example, refrain from discussing client matters in elevators or public places unless you can be certain that the only people who can hear are those with whom you intend to speak. Some of these precautions relate to technology that is certainly not cutting-edge. For example, if you are using a speakerphone, do not blindly rely on the mute button to prevent the party on the other line from hearing what you are saying to others. And upon completing your call be sure that the call has been fully and effectively terminated before discussing anything with anyone else. The extra second it takes to not only press the button to end the speakerphone call but also to then pick up and replace the handset is a small price to pay for peace of mind.

There is likewise much good, practical guidance for lawyers interested in doing all that they reasonably can to guard against the inadvertent disclosure of privileged information or work product material that does not require intimate familiarity with the latest technologies. A logical first step for all lawyers is ensuring that such documents are identified as privileged or work product when first created by being stamped or clearly labeled as such.²¹³ Doing so will not transform ordinary documents into privileged ones, but it will alert other lawyers, staff, and third parties handling the documents (such as copying vendors or electronic discovery vendors) to the special nature of the materials. If worse comes to worse and confidential documents fall into the wrong hands, branding the documents as privileged or as work product will provide helpful support when arguing that the unintended recipient should have known not to read the materials, or at least that in choosing to do so they proceeded at their own peril.

Further, and although it admittedly adds expense to the already expensive process of litigation, litigants should subject documents being produced in discovery to multiple levels of review before delivering them to an adversary. The number of, and method for, such multiple levels of review will likely vary depending on the nature of the case, client, and volume of documents produced. In any event, an appropriate system of secondary review before production will substantially help to ensure that even if documents were not labeled as confidential at the time of their creation by the client, they are properly identified and labeled long before they are produced in discovery.

Lawyers should also take measures to appropriately segregate privileged documents in some form or fashion, and all personnel working on a matter should receive instruction on how to maintain the files so that privileged documents are properly handled and stored. If documents are sent to an outside document management or electronic discovery vendor, the vendor must be properly instructed on which documents are privileged and must provide reasonable assurance that it will effectively segregate such materials from others.

As for technological issues, any attempt at ostensibly cutting-edge advice offered here will, like technology itself, probably not age well and seem cumbersome and clunky in a few years. But some high-level advice should endure: lawyers should make certain that they know and are proficient with the technology they use on a daily basis. Fundamental requirements of competence and diligence in modern litigation practice no longer accommodate...