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A recent UK High Court ruling in The Financial Reporting Council Ltd v Frasers Group plc, [2020] EWHC 2607 (Ch) has provided lawyers everywhere with a stark reminder on the scope of privilege for electronic communications: just because an email itself is privileged does not automatically render the documents attached to that email privileged. In other words, despite carefully worded disclaimers and self-proclamations of privilege, if any attorney-client communication or its attachment(s) are shared beyond the initial or intended scope, privilege may be broken.
While this single court decision may be somewhat limited in scope, it highlights longstanding problems with lawyers using email to conduct communications and share confidential documents. Once a lawyer hits send, he or she loses control of the sensitive material the email contains. Some newer messaging platforms widely used in the business world, such as Slack, for example, allow for even more multi-directional conversations as well as the easy sharing of documents, further compounding the challenge of maintaining confidentiality and managing privilege.
But technology itself is not the problem. Rather, the issue is that most in-house legal departments and law firms are not currently using the tools they actually need: sophisticated systems designed for legal work that allow lawyers to better manage permissions and access controls in ways that protect privilege while still enabling timely communication. Some forward-thinking corporate legal departments and law firms have embraced these platforms, but many others either aren't aware they exist or continue to struggle with an overall resistance to using new technology. The pitfalls of email are not going away, however, and lawyers have a professional responsibility to find better solutions for their clients. It's time to realize the benefits of legal tech.
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