Last month, the Court of Appeal of England and Wales granted permission for Eurasian Natural Resources Corp. Ltd. (“ENRC”) to appeal the May 2017 decision by the High Court relating to a dispute over the legal professional privilege with the Serious Fraud Office (“SFO”). The Court of Appeal will likely hear the case next year.
In May, the American Bar Association (“ABA”) released a Formal Opinion 477, providing guidance on attorney use of emails in communication with clients. In doing so, the ABA has promulgated a new standard when considering the level of protections necessary while using technology to converse about a legal representation. According to the ABA, a lawyer generally may transmit information relating to the representation of a client over the Internet when the lawyer has undertaken “reasonable efforts” to prevent inadvertent or unauthorized access to information relating to the representation. Under this reasonable-efforts standard, however, the ABA explicitly warns that a lawyer may be required to take special security precautions, like the use of encrypted emails, when the information warrants a higher degree of security.
In Disney’s The Lion King, the wise lion Mufasa sits atop a rock crag with his heir, the cub Simba, looking down on the Serengeti below. “Everything the light touches,” Mufasa instructs, “is our kingdom.” A similar scene plays out in countless law firms each year, when newly admitted attorneys are trained on the boundaries of the attorney-client privilege, a realm of communication protected from disclosure to outsiders. The California Supreme Court recently cast a shadow over this privilege, however, calling into question the extent to which it applies to one of the most common forms of attorney-client communication: an attorney’s bill.