Volume 19, Number 6
September 2002



By Wells Anderson and Joseph M. Hartley

Shared-space arrangements raise serious questions about maintaining client confidences. This article discusses ways to address this issue.

Receiving communications. Many shared-space arrangements include a receptionist who fields incoming calls for all tenants. If a client leaves a substantive message with the receptionist, attorney-client privilege is arguably waived, so the receptionist should be instructed never to take substantive messages from clients and to offer to transfer them to your confidential voicemail. Similarly, advise your clients not to put the receptionist in this position.
Under most state laws, a message taken by your personal secretary is protected as if it had been made to you directly. Problems can arise with the manner in which the message is taken: A staff member speaking in a normal tone of voice often can be heard by anyone walking by. If confidential information is taken over the phone, it must be done sotto voce, and the secretary must be advised of this fact.

Answering machines are not secure because anyone can replay or overhear a message. Invest in a voicemail service or equipment with an individual mailbox and password. Similarly, having one person who opens and sorts all mail is an unbelievably bad idea in a shared space. Client mail must be delivered-unopened-directly to you. If a receptionist opens the mail, you have just blown the attorney-client privilege for any privileged information. This also applies to hand-delivered documents from clients.

Most multitenant offices use a shared fax machine on a dedicated phone line, usually in a common, unsecured area. If you are in litigation and the opposition realizes you share a machine, you may be in for an unpleasant and expensive fight over the confidentiality of your client's faxes to you. Why risk it-a plain-paper fax machine costs less than $300. Fax/modem cards have also made it possible to send and receive securely from your computer. In terms of outgoing faxes, if you or your staff stands by the machine while sending a document, there should be no confidentiality problems. You do, of course, need rules against leaving faxes unattended while they are being sent over a shared fax machine.

Lawyers continue to agonize about the risks of communicating via e-mail. In all offices, confidential e-mails usually are saved in both paper and electronic forms. Once printed, they need to be safeguarded like other paper communications. So long as electronic messages remain on your own computer-and you secure your computers appropriately-confidentiality is not a problem.

Protecting documents on site. The thorniest problem in the shared office space is maintaining the confidentiality of information after it arrives. In the stand-alone firm, file storage does not present a confidentiality problem because that area usually is accessibly only by members of the firm. Many practitioners in shared office spaces opt for the convenience of centralized, shared file storage. You or your firm may have your own shelves, but anyone in the suite has access to the room and, thus, your files.

You must ensure that no confidential documents are publicly available to members of the office suite. If you want the convenience and economy of using a central storage area, you should not store confidential documents there. For transactional lawyers, this probably means the bulk of files have to be kept elsewhere. For litigators, it means all files except privileged documents can be kept in the storage area. Alternatively, any firm could adopt a simpler approach: Correspondence and memo files are stored privately; pleadings, discovery, nonprivileged documents, and the like are stored in the shared file area. This approach might be more inconvenient but would avoid no end of troubles.

Another option is having secure storage areas for all your files. Before you write this off as unworkable overkill, consider that files should be locked during the day yet easily accessible to relevant parties. The solution can be as simple as putting a locked file cabinet at each secretary's workstation, or as complex as having all files stored in the lawyer's office, which of course would be locked each night.

In almost every firm that shares space with other lawyers, the cubicles are effectively public areas to which any tenant of the suite has access. Precautions are necessary to safeguard work in progress at a secretary's desk. Confidential documents must remain in the secretary's possession at all times and be securely put away if the secretary leaves the area, even briefly. Many lawyers like to have an In-box on their secretary's desk, but in a shared suite, it is safer in the lawyer's office. Alternatively, a drawer or other enclosed container at the secretary's desk could serve the purpose, although this arrangement could lead to "out of sight, out of mind" problems with documents. For the same reasons, filing should be done immediately and the files returned to a secure location.

Using a common photocopier can help cut down on expenses in shared environments, but the same security measures regarding confidential documents must be followed by all using the machine. Current prices for high-speed printers are so reasonable that in many cases it makes more sense for each firm to have its own printers within easy reach and under the watchful eyes of its own staff.

A chron file contains copies of everything the lawyer sends out, including confidential communi-cations, so it should be secured. Document management software offers a secure alternative to the chron file, listing the lawyer's documents by date, with originals just a double-click away. Such software eliminates the busywork of maintaining an additional paper file of all work product.

Message slips should be guarded just like any other confidential communication. Message pads should be kept in a closed drawer after hours. Here again, switching to an electronic message system could help. Most networked computers can make the message pad obsolete, provided that the network is secured. Case and matter management software now incorporate internal phone message features with pop-up windows to notify lawyers about important messages.

One last item is the disposal of drafts of confidential information. Some lawyers will keep the draft in the file forever. If you don't, you and your secretary need to take appropriate precautions to make sure the draft is unreadable by anyone who goes through your trash. Shredders are a sensible investment.

Some of the procedures recommended here do not distinguish between confidential and public information. Entirely too much goes on in a law office to permit two separate policies based on a staff member's determination whether a particular document is confidential. Treat everything as if it is confidential, and avoid the problem from the start.

Wells Anderson is a legal technology consultant based in Minneapolis. Joseph M. Hartley is a trial lawyer in Santa Monica, California.

This article is an abridged and edited version of one that originally appeared on page 38 of Law Practice Management, March 2002 (28:2).

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