Previously on 3 Geeks, we posted on the dangers of using free email services like Gmail. The basic argument is that by granting a property right to content (a.k.a. client information) to Google, lawyers risk of waiving privilege. We had an interesting set of comments come in from this post, exploring how serious this problem is. Some people thought it wasn’t a problem at all, since Google is using machines to read your content. Others thought it was similar to FedEx reviewing packages for safety. My position is that the granting of rights to your clients’ information to someone else (be it Google, Yahoo, etc.) on its face creates an ethical issue for lawyers.
To add fuel to this fire, I saw two posts this week on a related subject. In July the New Jersey courts released an opinion (Sengart v. Loving Care) where an employee was using their company laptop to communicate with their lawyer about possible litigation against the employer. At the core of this argument is that fact that employers retain property rights to any information that resides on their computer equipment. Most employment policies inform employees about this, such as the one from Loving Care.
E-mail and voice mail messages, internet use and communication and computer files are considered part of the company’s business and client records. Such communications are not to be considered private or personal to any individual employee.
Compared to Google’s TOS:
By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive licence to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services.
Google notes that this right is for the sole purpose of proving the Services. However, that is not much of a limiting factor. Google uses this right primarily to direct ads to its users. But I don’t see anything in the TOS that limits them to this behavior.
Although Sengart and the Google TOS situations are not entirely similar, they share that core issue of giving property rights to content to a third party in exchange for the use of the technology. The one key difference with Sengart is that the client is the one who compromised the ownership of the content. Frankly, it’s the client’s right to do this since it’s their content. But even in that situation, a lawyer would be wise to warn clients about using email in such a way that privilege is compromised.
The legal profession holds itself out as having higher duties of care when it comes to securing client information. I suggest that using free email services with a TOS like Googles’ runs counter to this professional responsibility.