Why Lawyers Should Be Paying Attention to the NSA

From the law offices of Mikki Barry. Google's Gmail & Calendar may now have serious legal issues regarding potential breach of attorney/client privilege...

I was reading a blog located on the site I use for my case management, MyCase. Nicole Black from MyCase provided a review of a book called Google Gmail and Calendar in One Hour for Lawyers. The conclusion of the authors, Carole Levitt and Mark Rosch, was that it is perfectly ethical to use Google Gmail and Calendar in our law practices. However, the book came out before we knew what we now know regarding Google, and many other service providers being forced to install back doors to their (our) data, and before we knew that the NSA collects and stores all of our emails via these back doors (and other means, of course).
 
Attorney Client privilege is a legal construct in US law that protects and keeps confidential, certain communications between a lawyer and her client. It is this concept that provides the unfettered ability for a client to give the attorney information, knowing that 1) that information can’t be used in a legal action and 2) the information will remain confidential. There are, of course, exceptions to this rule, such as if the client has told her lawyer that she is about to commit a crime or harm another, and disclosure of client information if the client has died for the purpose of probate. However, the biggest exception there is, and the one that will cause any type of asserted privilege to dissolve into thin air, is disclosure in the presence of individuals outside the attorney(s) and their client(s), or subsequent disclosure to others. If either of those things happen, all bets are off. The lawyer may even find herself in the position of being forced to testify against her client.
 
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As attorneys, each one of us should be screaming bloody murder about this potential breach of attorney/client privilege at its very core. It’s not that it is “possible” to get our privileged information, our work product through Google Apps, both the “metadata” and the content of our correspondence, etc., it has already happened, and continues to this day. We KNOW our communications have been compromised. The question now is what to do about it.

Read the rest here: http://www.barrylawfirmpc.com/2013/09/10/why-lawyers-should-be-paying-at...