Confidentiality paralysis

It is built into us through training and experience, becoming ever more instinctive as we progress through our professional lives. Yet, for our clients - and even world leaders - the concepts of confidentiality and privacy and the power of data remain abstract, or worse, wilfully ignored.

In the past week, Hillary Clinton has seen a raft of her emails released into the public domain. The juiciest, according to our editorial conduits, are of course marked confidential and were sent in the expectation that they would remain so. Such expectation might be reasonable; after all, these were communications apparently in personal emails, sent between private individuals from their private accounts.

Some of those released may have caused embarrassment to the presidential candidate, to existing and former governmental hotshots, and to others, but many will simply record the day-to-day mundanity of life, albeit political life, in the 21st century. Now, I may not be a psychologist, but the normalising of instant messaging, emailing, and other communications must contribute, at least in part, to even the most sensible and otherwise risk-averse individual dropping their guard.

Confidentiality is and will always be of paramount importance to lawyers. It is so important it sometimes inflicts us with professional paralysis, rendering us unable to act or speak for fear of breaching a confidence. It is, however, one of the many reasons the legal profession is so highly regarded, and one that the profession is sure to fight for. Over the summer, the controversial Data Retention and Investigatory Powers Act (DRIPA) was successfully challenged, with the Law Society intervening in order to add its concerns on our behalf.

But, in spite of the time spent in training, extensive terms of client engagement, regulations, and client expectation, we are not infallible. We all learn by experience (our own and the misfortunes of others), and I know that I am not alone in sending an email to the wrong 'John Smith' and blaming it on the painfully predictive ways of Microsoft Outlook. (For the Solicitors Regulation Authority's records, I should confirm that this happened just the once and it wasn't related to any confidential client matter.)

Email has provided us with an accessible, quick, and easy method of communicating. It has created not only an insurmountable mass of data but also impacted on the content we create and share. It also brings with it a sense of urgency. We are all susceptible to the demands of a client who sends each and every email with a red exclamation mark. Although we may be able to fall back on legal privilege to set us apart for now, it isn't and should never be a reusable 'get out of jail free' card.

Of course, the reality is that we are not all as interesting as Clinton, but our clients may be. With the threats of hacking, phishing, and the spectre of negligence never far from our minds, we should heed the warning from across the pond and take care and time to think, before we press the send button.

Kevin Poulter is SJ's editor at large and a legal director at Bircham Dyson Bell @kevinpoulter

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