April 27, 2020 Article

    Privacy Considerations for Remote Client Conversations

    Some tips for maintaining consistent connection with child clients while ensuring lawyer-client confidentiality is not breached.

    By Cathy Krebs

    We are monitoring the coronavirus (COVID-19) situation as it relates to law and litigation. Find more resources and articles on our COVID-19 portal. For the duration of the crisis, all coronavirus-related articles are outside the Section of Litigation paywall and available to all readers.

    During COVID-19 it is difficult for lawyers to meet in person with their child clients. Many lawyers are using the variety of platforms available for keeping in touch, but those platforms may raise privacy or other concerns. This practice point is meant to provide information for lawyers to assist them in both maintaining consistent connection with their child clients and ensuring that lawyer-client confidentiality is not breached. This resource does not contain checklists for checking in with your client on substantive topics, however a list of resources and checklists are listed below this practice point for easy reference.

    One of the first places to start is ensuring that your child client’s home or facility has access to needed technology and Wi-Fi. For information on that topic see Tips to Ensure Your Child Clients Have Access to Technology

    Lawyers may want to remind their clients about the attorney-client privilege, perhaps at the beginning of each conversation. Let your clients know that you may need to utilize certain platforms to ensure that the privilege is not broken, and that you need to know who is in the room when you are speaking, particularly if you are connecting via a video platform. Lawyers might also explain privacy issues and how certain platforms do a better job of ensuring privacy. Be transparent with your client about why you are using a specific platform to be in touch, to ensure both the attorney-client privilege as well as privacy. If you are attempting to speak with the client at a distance or through a communications platform, be aware that it may be more difficult to have one-on-one conversations with the client such that no one else is present in the room where the client is and may be able to listen to the conversation. A phone call may be the best way to ensure a confidential conversation with your client, but all platforms—even phone calls—can be tricky from a confidentiality point of view. Always ask your client if they are in a place where they can have a confidential conversation. 

    At the bottom of this practice tip is an overview of the variety of ways to connect to your client, as well as information on the privacy of each communication platform. 

    Connecting with Young Clients

    For very young children, lawyers will want to see their clients, environments, and caregivers, just as they always need to do. Here are some tips and ideas for maintaining contact with your very young child client:

    • It is likely more helpful during the pandemic to keep contact with families and young children short but check in more frequently.
    • Arrange with the caregiver to travel to the child’s home and meet with them in a way that comports with social distancing. For example, meet with the family outside or talk to them through a window. You could use the phone to get specific questions answered in a more confidential way. You can still learn valuable things by watching the child interact with the custodian and observing the child in person, even if not up close.
    • Set up a video visit with your child client. When choosing a platform to maintain connection, ask your client’s caregiver how they would like to be in contact as if you can choose a platform with which they are familiar that might be helpful in ensuring regular contact. Lawyers can balance those preferences with privacy issues utilizing the information below regarding platforms. 

    Connecting with Older Clients

    Just as with younger child clients, lawyers may want to increase their contact with older clients during the pandemic. 

    • Older clients may have a preference on the type of platform they would like to use to connect, be sure to ask them for their preferences. Lawyers can balance those preferences with privacy issues utilizing the information below regarding platforms. 
    • Lawyers may want to use a variety of platforms to keep in touch with your older clients, perhaps using different platforms for different things. For example, if your client likes to text, you might use text to set up a time to talk by video or phone, though never for confidential topics.
    • Connecting by video, if possible, is a good way to see your client and have them see your face as well. If you connect via a video platform, ask your client who is within ear shot of your conversation. If anyone else in the home can hear your conversation, limit topics of conversation to non-confidential topics.
    • Consider if you can have an in-person meeting with your client in a way that comports with social distancing. For example, meet with your client outside, maintaining appropriate distance, or talk to them through a window, perhaps while using a phone to speak to them. It may be helpful to see your client in person to observe first hand how they are doing.
    • If your client has headphones with a microphone attached, recommend that your client use them during your communications. While individuals in close proximity to your client will still be able to hear your client speaking, they will not be able to hear what you say to your client. 

    Connecting with Clients in Detention or Congregate Care

    Young people who reside in facilities are extremely vulnerable right now, both in terms of the increased risk of infection from COVID-19 but also due to increased isolation and seclusion. It is important that lawyers are staying in close contact with clients who reside in a facility to monitor the conditions of confinement as well as the safety of each child client. 

    • Be familiar with your state guidance and the facility’s written guidance/policies on attorney visits. Advocate for policies and procedures that ensure frequent and confidential contact with attorneys and attorney contact at a client’s request.
    • Consider if you can have an in-person meeting with your client in a way that comports with social distancing. For example, is there a way to meet with your client through a window, perhaps while using a phone to speak to them? It may be helpful to see your client in person to observe first hand how they are doing.
    • What access to technology and wifi does the facility provide? Are there bandwidth limitations that make it challenging to make calls? If it is possible for your client to have a phone, there are organizations that can help you secure one for them.
    • Make sure you know the best times to reach clients at facilities, and follow up with administration/staff if you are not getting your calls returned. 
    • What protections are in place to protect confidentiality of attorney-client calls or communications? Can you request a confidential, unmonitored, unrecorded call? Even so, it is worth making sure that no one is in the room with your client when you begin your conversation.
    • Are third-party calls prohibited such that the attorney may have difficulty joining other members of the team into the call or may not be permitted to do so?
    • At the beginning of the visit, ask the client where they are and whether anyone is within earshot. Ask if they have any concerns about confidentiality. Remind your client that s/he has the right to speak to you. Ask your client whether s/he has made any requests to speak with you that have not been fulfilled in a timely manner.

    Communication Applications for Keeping in Touch with Clients

    When determining which communication application to use, there are some factors you may want to consider including:

    • Does it limit participation to only the intended parties?
    • Do you want to video conference with your client, text/message them, or both? 
    • Is it secure?
    • Is it available on a range of platforms? Are there privacy concerns?

    Ultimately, however, your options may be limited to those communication applications accessible and usable by your client. Regardless of which application you use, you should understand the benefits and limitations of those applications because it may impact what information you share and how.

    Here are some communication applications that can be used to stay in touch with your child clients and an overview of the advantages as well as the potential privacy issues associated with each. When determining the security of an application, information security professionals recommend communication tools that are encrypted (no one else can see or listen to the communication), and end-to-end encryption provides security for the data while it is moving from the source of the communication to the destination. 

    Regardless of how you choose to stay in touch with your child clients, it is essential to stay in close contact with them during the COVID-19 pandemic to ensure their safety and well-being.

    Below are some resources that include checklists for substantive topics to talk to your child clients about during the current pandemic:

    Disclaimer: This information is provided to help understand the various platforms as of May 2020. Many platforms have been working to improve their security and privacy features so some features and issues listed below may change.

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    Cathy Krebs is the director of the Children's Rights Litigation Committee. The author would like to thank Wenxi Li from DLA Piper for her research on the communication platforms and Shobha Mahadev from the Chidlren and Family Justice Center at Northwestern Pritzer School of Law for her collaboration and input.

    Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).

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