Opinion: Client confidentiality must be protected even in the information age

The information age has for so long been upon us and this has come with the collapse of several boundaries in relationships. Personal information has now more than ever been ably available for public consumption. Unfortunately, such circumstances have extended to the professional relationship such as that between an Advocate and their Client.

To understand the importance of the Advocate-Client confidentiality, it is necessary to go back to the purpose for which it is emphasized. The rule on Client confidentiality arises from the fiduciary relationship between an Advocate and a Client. This is premised on the fact that for a lawyer to be able to provide wholesome legal advice to their Client, there ought to be full and truthful disclosure. The privilege of confidentiality arising from the Advocate-Client relationship therefore acts as a safety net to the Client to ensure that all such information shall be treated in a secure manner and no such disclosure shall be used to the detriment of the Client seeking legal advice.

Initially, such privilege was limited to litigation matters but given the constantly evolving community that we now belong to and its growing complicated nature, legal advice has proven to be an essential aspect for today’s ordinary man. Accordingly, the privilege of confidentiality has equally extended to any consultations for legal advice for all legal persons whether natural or corporate.

The privilege to the Client however is not a solid rule as it comes with its own exceptions. There are instances where such privilege shall be overridden that is; where it becomes necessary in the conduct of affairs of that Client and where the law requires such disclosure. As such, the privilege belongs only to the Client and not to the Advocate.

In the information age such as the one that we live in now, the duty of silence premised on the Advocate in an Advocate-Client privilege is still paramount. Whereas it has been proven that transparency is an asset and of great importance to various economic ventures, when it comes to legal consultation and information shared therein confidentiality remains important now as has been. I for one would argue that the standard of confidentiality should actually be upheld more stringently than ever before.

As has been with many other professions, the legal one has equally made its presence felt on various social media platforms such as twitter, LinkedIn and Facebook. Several lawyers and law firms have harnessed the opportunities that social media platforms have to offer for their various practices and this has come with several branding tools such as holding several conversations, sharing articles and conducting awareness sessions on various legal positions.

The virtual spaces on social media have evolved so much as several jurisdictions have gone ahead to equate virtual presence to physical presence in certain matters. For this reason, advocate-client relationships and engagements on such platforms ought to be given keen attention. The rules guiding and binding an Advocate to client confidentiality therefore equally extend to social media platforms and breach of such can have adverse implications to a client’s interest, integrity of a lawyer and reputation of a firm’s practice.

Often times, breach of such confidentiality may be attributed to carelessness or inadequate security as ignorance of such a rule that speaks to the bare existence and practice of the law would be unprofessional. Lawyers should jealously guard their social and professional interactions on social media with the same vigilance as they do on their daily interactions on other fora not being social media. It is noteworthy that whereas an Advocate has a right to defend themselves when sued for malpractice, such does not extend to responses on social media platforms even though the information disclosed is accurate.

Jurisdictions such as America have gone an extra mile of including Advocate-Client information available on public record such as Court proceedings as privileged information shared between an Advocate and Client that is devoid of publicity on social media platforms except for with the Client’s express approval.

What remains paramount therefore is that Advocates should be able to seek approval from their Clients before divulging any form of information concerning transactions that they may be handling on their behalf. In the premise of any such approval, an Advocate is vindicated from any form of liability that may arise from any such interactions on social media platforms and the Client is equally made aware of any such engagements that may take place on such platforms concerning themselves or their business.

Advocates should also be able to streamline their engagements on social media such that the position of a Client is not mistaken by engagements on social media. Indeed, an Advocate can have interactions on social media without necessary establishing an Advocate-Client relationship and information shared herein would not be privy to the privilege of confidentiality. Advocates and firms who are actively engaging on social media should be able to develop policies that guide their engagements in this regard.

Now that we are in an information age filled with several data and technological developments, legal businesses should be able to adapt to the several changes as have other professions. Data protection ought to be a priority to legal practitioners given that a lot of information handled by Advocates is confidential. Measures such as system updates therefore go a long way in ensuring that information collected and handled by Advocates does not find its way illicitly on social media platforms.

Whereas the privilege wholly rests on the Client, they also have duties and roles in protecting such information. Clients should be equally concerned about their data privacy and information safety nets as well as their social media interactions on matters being handled by their legal counsel.

What remains is that the Advocate-Client relationship is the stronghold of legal services and the rule of confidentiality is therefore here to stay.