More and more work is being performed electronically. Every office has a fax machine and more and more offices rely on network and Internet e-mail to communicate and transfer information. In fact, many clients specifically inquire whether the firm has e-mail to ease communications. Most attorneys and many clients and paralegals have cellular phones to allow them to stay in touch. Paralegals need to become electronically proficient but we have ethical responsibilities as well.
Unlike some electronic transfers of information, it is rare for faxes to be intercepted by someone else while they are being transmitted. However, it is common for faxes to be inadvertently sent to the wrong number. Most firms have some sort of confidentiality notice and instructions for returning the fax if it is received in error such as the following:
CONFIDENTIALITY NOTICE: The documents accompanying this facsimile transmission contain confidential information which is legally privileged. The information is intended only for the use of the recipient named above. If you have received this facsimile in error, please immediately notify us by telephone to arrange for return of the original documents to us, and you are hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this facsimile information is strictly prohibited.
Most people, if they receive a fax in error, will call the sender to inform them of the error. The danger is that when confidential information is being faxed, an unintended recipient may not inform you of the error. A paralegal I worked with once attempted to fax privileged information to a consulting expert. It wasn’t until opposing counsel called the attorney that she realized she had used a fax cover sheet with the wrong fax number on it. Fortunately, opposing counsel realized the error and called to say he had documents he didn’t think he was supposed to have. In another case, a client was having difficulty because its insurance company was n0t cooperating with the attorney that was representing the client. When a mediation was scheduled, the insurance company wanted to bypass the client’s attorney. However, the mediator’s office accidentally sent notice of the mediation to the client’s attorney because she confused his name with the similar name of an attorney for one of the plaintiffs. Naturally, the client and the client’s attorney were not too happy with the insurance company’s attempt to circumvent their involvement.
Perhaps the safest way to avoid errant faxes is to create separate fax sheets on your computer for each person involved in the case. Once those are created and you have double-checked the fax number, it is only a matter of customizing the message and number of pages for that sheet before printing it. If you do fax something in error, have your attorney notify the party as soon as possible to avoid waiving privilege. If you receive a fax in error, notify the sending party as soon as possible.
Cellular or mobile phones are so convenient. No need to always give someone the number of where you will be when attending a document production or meeting out of the office. You can even be accessible during lunch and on the weekends (although most of us don’t want to be quite that accessible). An unfortunate characteristic of cellular phones is that they offer you no guarantee that someone isn’t listening to your conversation.
If you haven’t had it happen with your cellular phone, you may have had it happen on your cordless phone at home. Sometimes it’s just a bad connection and you only have to change channels. At other times you can hear someone else’s conversation with varying degrees of clarity. That is what can happen with your cellular phone. Most of us probably aren’t willing to give up the convenience of these phones but the best thing is not to say anything over a cellular phone that you wouldn’t want printed on a billboard next to a major freeway. Remember what happened to Newt Gingrich when a couple of tourists overheard him talking on a cellular phone? The tourists weren’t even trying to listen in and they got an earful.
I’m sure the conversations most of us have on our cellular phones are of no interest to anyone other than those participating in the conversation, but that doesn’t mean you shouldn’t take precautions. If something particularly confidential has come up that just can’t wait, agree in advance on some kind of code or shorthand language. You can also ask the person using the cellular phone to go to a pay phone and call you back.
Although much of this advice may appear unnecessary or intended for someone working on particularly high-profile cases, we must take all possible precautions to safeguard the confidential and privileged information of our clients. It also might not hurt to remind your attorney and clients to also be careful. It’s always more difficult to regain privilege and confidentiality than it is to keep it in the first place.
Ellen Lockwood is a legal assistant with the firm of Jenkens & Gilchrist Groce, Locke & Hebdon in San Antonio. She is a former member of the Board of Directors of the Legal Assistants Division and currently serves as Chair of the Ethics Committee.