Compliance experts from both sides of the Atlantic have delivered a stark warning about the potential risks of communicating with clients via social media or text messages. 'I tell juniors that if you text and there’s a discovery process, you’re going to have to give someone you’ve never met your phone and access to everything on it,' said professional responsibility specialist Anthony Davis, Of Counsel at Clyde & Co New York.
The topic emerged at 'Common Law?', a conference organised in Washington DC by the Law Society and the US Association of Professional Responsibility Lawyers (APRL). Davis told the event that the two biggest technology challenges facing law firms are data security and social media.
He was speaking in the month that the American Bar Association joined the list of legal entities to have its data security breached, with hackers gaining access to the credentials of more than 1.4 million members.
Pressure to communicate via potentially unsafe media can come from clients as well as 'Generation Z' lawyers, the conference heard. Tyler Maulsby, partner at New York firm Frankfurt Kurnit Klein & Selz, pointed to the perils of communicating through a client's own document-management software. ‘As soon as you make changes to such a document, download and save the version,’ he advised.
Firms should take particular care with clients wishing to communicate via the WhatsApp messaging platform, Davis said. ‘The big question is, has the client understood the risk of the system?' When clients insist on using the channel, ‘My view is to say to the client you have no further expectations of client confidentiality or privilege.'
Donald Campbell of Michigan firm Collins Einhorn Farrell, added that even when a client agrees to such a waiver, 'you have to think: how confident are you that you can recover the information you need to protect yourself from a client claim?’ One of the features of WhatsApp, he noted is that, once a message is deleted, ‘it’s gone forever’.
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