Cyber Defense eMagazine December Edition for 2021

Certain communications are protected from disclosure to third parties under the attorney-client privilege.
These conversations must be confidential, between an attorney and a client, and made for the purpose
of getting or providing legal advice to qualify for this protection. If these three pieces of criteria aren't met,
the communication isn't considered valuable. The overarching goal of this privilege is to encourage open
communication and information sharing in order to seek legal counsel without fear of unintentional
exposure.
Best practices for legal professionals
Attorney-client privilege is still one of the more difficult and subtle aspects of legal practice. The corporate
entity – with employees, business units, and governing boards – adds to the intricacy of this privilege for
corporate counsel. The fact that in-house counsel serves as both a trusted legal expert and a business
advisor further complicates the matter.
Despite the fact that there is minimal case law specifically dealing with privilege and communication
platforms or tools, established privilege rules apply. Courts use the modified subject matter test to
evaluate whether a communication is protected by the attorney-client privilege. When a corporate
employee communicates with the corporate attorney about legal advice, the subject matter is within the
scope of the employee's duties, the employee's superior incentivises the employee to make the request,
and only those who need to know the contents of the communication receive it, meaning the
communication is protected.
Take time to educate yourself
Model Rule 1.1, which stipulates that a lawyer "should keep aware of changes in the law and its practise,
including benefits and hazards connected with applicable technology," has been approved by the
American Bar Association and various states. As a result, lawyers are expected to be aware of the
hazards and benefits of technology and to make judicious use of it.
BYOD Policies
BYOD (bring your own device) policies can be written to provide some protection against certain dangers.
The usage of a BYOD smartphone or tablet by employees blurs the barrier between personal and
professional life. In comparison to a thumb drive, a BYOD device can readily keep trade secrets on the
device itself or via a cloud storage service. The expectation of privacy of an employee is at the heart of
the legal issue. The most forward-thinking businesses will create a detailed, customised BYOD strategy
that works in tandem with existing security measures. Employees who use a BYOD smartphone or tablet
in conjunction with business computers would have to sign away their expectation of privacy in more
restricted regimes.
Cyber Defense eMagazine – December 2021 Edition 97
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