Lawyers should follow Elon Musk’s advice and switch to Signal
By now, most of you have heard about WhatsApp’s new terms and conditions that were to take effect in February of 2021. Following a backlash from users worldwide, including the world’s richest person, Elon Musk, WhatsApp delayed the enforcement of their new policy by three months. The policy requires users to agree to sharing certain information with WhatsApp’s parent company, Facebook. If users do not accept the new terms, WhatsApp would simply stop functioning.
What is so wrong with the new terms? Aren’t your conversations still encrypted?
Your conversations still have end-to-end encryption and neither Facebook nor WhatsApp would be able to access the contents of your conversations. However, by agreeing to the new policy, you agree to share information like phone numbers from your contact list with Facebook, though European and UK users are not affected by these changes as they are protected by EU privacy laws.
In Canada and the US, lawyers have ethical and professional obligations to keep client information confidential. Rule 3.3-1 of the Federation of Law Societies of Canada’s Model Code of Professional Conduct states:
A lawyer at all times must hold in strict confidence all information concerning the business and affairs of a client acquired in the course of the professional relationship and must not divulge any such information unless:
(a) expressly or impliedly authorized by the client;
(b) required by law or a court to do so;
(c) required to deliver the information to the Law Society; or
(d) otherwise permitted by this rule.
Further, Rule 3.1-2 provides “A lawyer must perform all legal services undertaken on a client’s behalf to the standard of a competent lawyer”. Commentary 4(A) goes on to explain “To maintain the required level of competence, a lawyer should develop an understanding of, and ability to use, technology relevant to the nature and area of the lawyer’s practice and responsibilities. A lawyer should understand the benefits and risks associated with relevant technology, recognizing the lawyer’s duty to protect confidential information set out in section 3.3.”
Similarly, Rule 1.6 of the American Bar Association’s Model Rules of Professional Conduct states “(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent…” Section (c) of that rule goes on to state “A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”
To be competent, Lawyers relying on communication technology such as WhatsApp, must understand how these technologies work and what risks are associated with using them lest they inadvertently disclose or give access to information relating to the representation of a client.
Is it appropriate for a lawyer to share a list of phone numbers from their contacts that may include client phone numbers?
I would argue that a client’s phone number does fall within the ambit of “all information concerning the business and affairs of a client”. In 2018, The American Bar Association released Formal Opinion 480 which provides that even a client’s identity is protected by Rule 1.6(a). If we consider the Panama Papers fiasco, the revelation of Mossak Fonesca’s client list damaged the reputation of many of their clients. Within just a few years of the massive data leak, the firm closed its practice and many of its clients, who were wealthy businesspersons and politicians, resigned from their posts or offices held.
If indeed lawyers have a duty to protect the identity and contact information of their clients, they should consider whether their continued use of WhatsApp would breach their duty to protect client data. Lawyers need to exercise “reasonable efforts to prevent the inadvertent or unauthorized disclosure” requirements.
Since the start of the pandemic, law firms are relying heavily on software-as-a-service, including cloud storage and communication apps to communicate regularly with colleagues and clients. On the one hand, the pandemic has forced many to rethink their business models and modernize their processes to provide more efficient and cost-effective services to clients. On the other hand, it has opened law firms up to more risks and potential for breaching the exacting professional and ethical standards demanded of the profession. Lawyer must be vigilant and understand the risks associated with introducing new technologies. It is ultimately a lawyer’s responsibility to maintain the confidences of their clients.
Liran Kandin is a dual licensed attorney in New York and Ontario. He is the founder and CEO of Lex PD, a legal education company that provides continuing education to lawyers and law students internationally. Liran is a former IBM and Salesforce employee and is a tech enthusiast.