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By Jan Hill
Most people are familiar with the term attorney-client privilege, which is to protect all confidential communications exchanged between a client and their lawyer. While a paralegal is not a lawyer and is instead required to work under the supervision of a licensed attorney, there are still ethical obligations that must be followed by all legal professionals with regard to their dealings with clients and hold attorneys accountable for the conduct of their employees.
A paralegal may not establish an attorney-client relationship, provide legal advice, and advocate on behalf of clients in court, and lawyers should take steps to avoid putting their paralegals into difficult positions due to client demands, including putting policies in place to protect client information and provide training for paralegals regarding the importance of safeguarding client confidentiality.
Purpose of the attorney-client privilege
The intent of the attorney-client privilege is to allow the client to feel comfortable telling their lawyer all the facts concerning the case without fear of repercussion. It applies in these specific circumstances:
- When the communication is shared in private and the client intends for it to remain confidential.
- When the attorney is acting in a professional capacity with the client regarding the legal services being provided.
- When the client is communicating with the attorney regarding those legal services.
The client is the holder of the privilege, and the attorney must have the client’s permission and consent to share confidential information. Even the court cannot compel an attorney to testify in court and reveal confidential client information. While only the client can waive the attorney-client privilege, it might be considered waived in the following circumstances:
- The client decides to share information with an unrepresented third party (other than a spouse or party to the case).
- The communication made by the client concerns an intention to commit a crime.
- The communication is necessary to protect the attorney from a legal malpractice claim.
But what about paralegal-client privilege, and is there really such a thing?
Paralegal-client privilege: an extension of the attorney-client privilege
The attorney-client privilege and the corresponding ethical obligations of client confidentiality extend to the paralegal and all non–lawyers working on the case. Rule 5.3 of the Model Rules requires that attorneys who are partners in a firm, have comparable managerial authority, or have supervisory authority over paralegals and other legal staff” make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.”
Essentially what this means is that lawyers are responsible for non-lawyer ethical rule violations as long as they directed or approved the conduct, or in their capacity as partners or supervisors of the staff member, failed to take timely corrective action regarding the action. The obligation to protect client confidentiality extends to all types of information, including:
- Documents and other written communications
- Nonverbal communication (head nodding)
- Files and computer security
- Communication posted on social media, online bulletin boards, and the law firm’s website
- Electronic materials sent directly to opposing counsel
- E-mail communications sent to clients and others
- Verbal discussions about client matters held in the office, the elevator, and even at home when others are present
One way to protect client confidentiality electronically is the use of built-in computer software features or custom programs that remove meta-data and notations from electronic copies of documents and avoids wide dissemination and inadvertent disclosure of privileged information.
In the event of inadvertent disclosure, attorneys need to stress that the paralegal must immediately inform them of the erroneous release of information, rather than ignore the problem, hoping that nothing harmful results from it. The earlier the lawyer discovers the inadvertent disclosure, the quicker that steps can be taken to solve the problem, which includes informing the receiving party of the inadvertent disclosure and asking for the return of the disclosed information.
One more thing: If a paralegal decides to terminate employment, attorneys need to remind the departing employee that they have a continuing obligation to maintain client confidentiality regarding cases they worked on during the course of their employment at the firm.
This article was originally posted on onelegal.com and is shared here with full permission from the author.