Protecting attorney-client privileged communications has never been more difficult, especially for in-house counsel. While there are many reasons for this trend, two key contributing factors include the role of technology and the growth of information subject to privilege reviews. These issues – which make privilege claims more difficult to defend – also have implications for in-house counsel’s duty of competence. This is because lawyers are now expected to understand “the benefits and risks associated with relevant technology” as part of their overall duty to “keep abreast of changes in the law and its practice” under ABA Model Rule 1.1.
The impact of technology