By Brian Kennedy

 

Zoom video conferencing has become all too familiar during the COVID-19 pandemic, especially in the legal realm. The use of video conferencing raises several legal questions regarding confidentiality, and what methods can be taken to ensure the protection of clients.[1] As attorneys adapt to speaking to their own clients through a screen, it is critical to ensure that attorney-client privilege is effectively protected.

Under the Model Rules of Professional Conduct, “[a] lawyer shall make reasonable efforts to prevent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”[2] This rule establishes trust between the client and the attorney and allows for open communication.[3] Taking this into considerations when Zoom is implemented as a method of communication, risk of disclosing this information should be mitigated if possible.[4] “Knowingly failing to implement commercially and readily available safeguards could later be used as a basis for challenging privilege to your client meetings.”[5]

Using Zoom as a platform poses several threats to ensuring the protection attorney-client privilege.[6] One primary concern is the process of recording a client meeting.[7] “Based on the terms of service from Zoom, and as described by Blue Jeans, when meetings are recorded on these services, the videos can be stored by these third parties.”[8] To avoid this concern, these meetings should not be recorded “through third-party applications.”[9] This is a reasonable step towards ensuring protection of confidential information.

Another concern raised by videoconferencing is the potential for “Zoombombing.”[10] This security risk “occurs when an unauthorized intruder enters into a Zoom meeting.”[11] Again, this security threat jeopardizes the confidentiality of the meeting. However, there are steps that may be taken to mitigate this risk.[12] For example, a password for entering the meeting can be used to ensure authorized participants.[13] Additionally, a virtual waiting room can allow the attorney to essentially screen participants.[14] “If the host does not recognize a name or phone number, that participant stays outside the meeting, adding an additional layer of security to your client meetings.”[15]

Additionally, the network used to conduct Zoom conferences can also play an important role of protecting attorney-client privilege.[16] Using a virtual private network can add another level of increased security versus using just a standard public WIFI.[17] Selecting the appropriate virtual private network can “limit unwanted outside access to the communication.”[18] Even being cognizant of your surroundings and using headphones while on a videoconference can protect information shared between an attorney and a client.[19]  If an attorney does use Zoom’s platform these considerations should be taken seriously, because these simple steps can help mitigate this ongoing risk.

Zoom clearly raises several confidentiality concerns, but it has also provided open communication during a time in which face to face interaction is extremely limited. As Zoom continues to be used for videoconferences, it is important to recognize the importance of trust between attorney and client “which is the hallmark of the client-lawyer relationship.”[20]

 

[1] David Saunders & David Greenwald, Insight: Zooming and Attorney-Client Privilege, BL (May 22, 2020, 4:01 AM), https://www.bloomberglaw.com/bloomberglawnews/us-law-week/XFII4528000000?bna_news_filter=us-law-week#jcite.

[2] Model Code of Pro. Conduct r. 1.6(c) (Am. Bar Ass’n 2020).

[3] Model Code of Pro. Conduct r. 1.6 cmt. (Am. Bar Ass’n 2020).

[4] Saunders & Greenwald, supra note 1.

[5] Id.

[6] See generally Eric Shaffer, Legal Issues in Zoom Meetings, Law Technology Today (Aug. 2, 2021), https://www.lawtechnologytoday.org/2021/08/legal-issues-in-zoom-meetings/.

[7] Saunders & Greenwald, supra note 1.

[8] Id.

[9] Id.

[10] Shaffer, supra note 6.

[11] Id.

[12] Saunders & Greenwald, supra note 1.

[13] Id.

[14] Shaffer, supra note 6.

[15] Saunders & Greenwald, supra note 1.

[16] Michael Maicher, Are You Maintaining Privilege When Using Zoom?, Imagine That IP Law Blog (Apr. 19, 2021), https://www.vklaw.com/ImagineThatIPLawBlog/are-you-maintaining-privilege-when-using-zoom.

[17] Id.

[18] Id.

[19] Id.

[20] Model Code of Pro. Conduct r. 1.6 cmt. (Am. Bar Ass’n 2020).

Image source: https://www.shutterstock.com/image-photo/september-3-2019-san-jose-ca-1495402889