Some of us have problems meeting with clients. Either we have practices that are regional or nationwide, or the client cannot come to our office during normal working hours and getting to the client’s home or office is too hard. Fortunately for us, today there are technological solutions as long as everyone has the Internet and a modern laptop (or desktop with a digital camera installed).
Face-to-face meetings can be conducted via Skype or Apple’s variation, Facetime. For those of you who don’t know them, Facetime is a wonderful free service by Apple to permit video calls with other Facetime subscribers. Skype is a wonderful and free service owned by Microsoft that enables you to make video calls to other Skype subscribers. As far as I can tell, Skype works on Apple and PC systems but Facetime works only on Apple systems. Both will allow you to virtually meet the client. For a small fee on Skype you can do conference calls with up to five participants, so you can even do video meetings right from your computer.
In addition to a regular video call to the client, for a small fee Skype will allow you to do conference calls with up to five participants. This lets you do video meetings right from your computer. But are these calls private? As best I can determine, as of July 2012, Microsoft, Skype’s owner, is claiming that calls between two parties do not go through any data centers. Thus Microsoft should not have access to either the video or audio. In addition, regular Skype calls are supposed to be encrypted. Assuming Microsoft’s reports are true, one-on-one calls should be safe, even from the government. This is not true about multiparty calls. Apparently multiparty calls do go through the Microsoft data centers. Thus, any of these calls are subject to being intercepted. According to Sensei Enterprises, “Based on what we know today, most experts have signed off on one-to-one calls via Skype. But I would be wary of group calls—once data is stored on a company's servers, I am leery of statements about when it is removed (and whether it might be shared at the legal request of a government).” Ride the Lightning” blog post Jan. 30, 2013.
For these reasons I am a Skype addict and regularly use it to meet clients who are remotely located. However, based on the Sensei Enterprises assessment (and other information) I would never use a group call to discuss client-confidential information. Lawyers in particular should avoid group calls involving client information. And Sensei is also reporting that Microsoft may be in the process of changing this policy, but we won’t know for a while. You should keep a careful eye on what changes to Skype privacy policies Microsoft announces.
Correspondence and Document Exchange
An Initial Word on Security
Unless you use encryption, any exchange of documents or email is not perfectly secure. In fact, even if you do use encryption, you may not be perfectly secure. For those of us who do not use encryption when communicating with clients (and I don’t know anyone who does not), please keep in mind that under various rulings by the courts (and depending on where you live, because it is very jurisdiction-specific), the government may be able to access your (and your client’s) emails without a warrant. Certainly that is true for emails left on a third-party server for 180 days. There’s a wonderful article on this issue in the August 2012 ABA Journal called “Crashing the Third Party.” (It’s part of an ABA series called “Patriots Debate.”) The article is a little dated, but it will give you a good start—and scare you too.
If you are using your firm’s email (based on your firm’s domain) and your client side is using Gmail or other free accounts, keep in mind the famous adage: TANSTAAFL (“ThereAin’t No Such Thing as a Free Lunch”). As another person once said (and I wish I could recall who that person was) “If the product is free, you are the product.” In other words, whatever you and your client send/receive is no longer private, especially if you leave it on Gmail, Yahoo, Hotmail etc. for more than 180 days. Do you do that? Do your clients? Oops! What I do is set up a private email account on my firm’s domain and all correspondence goes to that email account. I also tell my client to use that account only to send me email. That way I have full control of the email chain even if it is left online. I also remove/delete/download everything on a regularly scheduled basis.
As an alternative, did you know Skype can also be used to send or receive emails? Unlike most email sent and received, email sent via Skype (and the attached documents) are not stored anywhere. They, like the videos, go directly from one computer to another, and no copy is retained. In any case, they are quite secure. Note: Facebook and Facetime don't do this. So don't use them for this point.
Electronic Transmission of Documents
Everyone has emails and uses them to send documents back and forth right? I use email all the time to send and receive drafts and final documents. One problem I have is that email accounts have upper limits on the size of the attachments you can send. Most email accounts I am familiar with have an upper limit for attachment size of between 5MB and 10MB. My own system will allow me to receive a file that is up to 25MB, but that’s because I own and control my own servers. But sometimes more than that is needed. That’s when zip.com or dropbox.com or yousendit.com can come into play.
I really don’t like to zip files. It’s useful because it allows you to compress large files into smaller ones that can be sent by email. But sometimes I have had issues with the transmitted files not being restorable. I don’t know why.
I don’t like to use Dropbox for sharing client files either. It’s great and it works well for me to send myself documents to review or otherwise look at. And it links wonderfully with my iPad and iPhone too. But I don’t like to give clients access to my public folder, so I don’t use it to send materials to my clients. I do like and use Yousendit. You get up to 2GB free transmission capacity, which is a huge amount of files. And the files are downloaded from the Yousendit servers, so the free service doesn’t fill up over time. Of course, your message may vary. Try them and see which ones you like best.
The Last Word
I have set out below a proposed paragraph to be included in any retainer document so the client is aware of your use of electronic and cloud transmission and storage. It is based on contributions from a number of lawyers’ advice and suggestions accumulated over a couple of years. I would like to thank them all, but don’t even remember who they were. Please also note that your jurisdiction may have its own rules that must be incorporated. (I am told that at least one jurisdiction is contemplating requiring email to be encrypted under some circumstances.)
It is our practice use electronic mail, including the use of online commercial email services that store information on their servers, for attorney-client communications. It is also our practice to send and receive documents via email and other document transmission technologies storing information in the "cloud" including, among others, Dropbox and Yousendit.com. We do this even though we understand that this may heighten the risk of inadvertent or unintended disclosures or other adverse consequences occurring. By signing below you
a) consent to the use of email and cloud storage services because of their efficiency and convenience, and
b) acknowledge that you are aware of and accept the risks of any adverse consequences, which could include the disclosure of confidential and/or secret information and the loss of attorney-client privilege.
If you do not agree to this common practice we will abide by any instructions you may give us, but in the absence of such instructions, we will use our own judgment regarding the advisability of using such means of communication.