You already know that privileged communication is the foundation of trust between you and your clients. But in a world where texts, emails, and digital files are exchanged at lightning speed, keeping that confidential communication truly secure is more challenging than ever. 

Have you ever worried about: 

• A client accidentally forwarding a privileged email to a third party? 
• A staff member texting case details from their personal phone? 
• A court requesting compelled disclosure because of an unprotected message? 

These are real risks. The rise of digital communication means attorney-client privilege is more vulnerable than ever. And if that privilege is broken—even unintentionally—it could complicate your case, your legal proceedings, or even your ethical obligations. 

What is privileged communication in legal practice? 

Privileged communication protects conversations between attorney and client, ensuring they remain private and undisclosed in court proceedings. This is critical in criminal proceedings, civil actions, and grand jury investigations. 

For communication to be considered privileged, it must meet three key conditions: 

• It must be between an attorney and client. If a third party is involved (unless they’re essential, like an interpreter), the privilege may be lost. 
• It must be intended as confidential. Discussions in public places or over unsecured platforms could waive privileged communication protections. 
• It must be for legal advice. If a client is just sharing personal opinions or business plans, it might not be covered. 

But while attorney-client privilege is well-established, modern communication methods have created gray areas. 

Common ways attorneys risk privileged communication 

Despite best efforts, attorneys often put privileged communication at risk without realizing it. Here are some common scenarios that could lead to inadvertent disclosure: 

Texting clients without secure channels 

According to the ABA Formal Opinion 477R, attorneys must take “reasonable efforts” to ensure the confidentiality of electronic communications. That means evaluating the security of text messaging when discussing privileged communication with clients. 

While texting is a convenient way to stay in touch, using personal phones or unsecured apps can introduce security risks. If privileged messages are stored on an unprotected device and a court proceeding involves a subpoena, privilege may still apply. However, courts could examine whether the attorney took reasonable precautions to maintain confidentiality. Secure platforms designed for legal professionals help ensure compliance with privilege protections. 

Using unencrypted email for confidential information  

The ABA advises attorneys to take precautions when transmitting privileged communication electronically. Unencrypted emails pose a risk, as they can be intercepted, stored indefinitely on servers, and forwarded to unintended recipients. 

Allowing staff to use unsecured platforms  

Paralegals and legal assistants often handle confidential communication between clients and attorneys. If they use unsecured messaging apps, it can create an opening for privileged information to be exposed. 

Improper document sharing 

Using consumer-grade file-sharing services to exchange sensitive case files, depositions, or evidence increases the risk of third-party access. The ABA has stressed that legal counsel should ensure confidential relations are protected through encrypted, controlled-access systems. 

Failing to educate clients on privilege  

Even if an attorney follows best practices, a client can accidentally waive privilege by forwarding an email, discussing their case with a third party, or sharing protected documents. Educating clients about their role in maintaining privileged communication is just as important as securing your own methods. 

How to ensure privileged communication stays protected 

With digital communication being the norm, attorneys should adopt best practices to ensure privileged communication remains secure. Here’s how: 

Use a dedicated, secure communication platform 

Instead of relying on personal phones or generic messaging apps, use a legal-specific platform that encrypts messages and keeps professional and personal conversations separate. 

Implement firm-wide security policies 

Law firms should establish protocols that outline how privileged communication is handled—whether through email, text, or document sharing. 

Encrypt emails and use secure client portals 

Using end-to-end encrypted email and secure client portals ensures that confidential information is protected. 

Train your staff and clients on privilege protection 

Make sure your team understands the risks of inadvertent disclosure and how to handle privileged communication correctly. Clients should also be educated on their role in maintaining privileged information. 

Keep personal and work communication separate 

Using personal devices for case-related communication creates risks. Keeping legal separation between personal and work conversations ensures that privileged communication is not compromised. 

Privileged communication in specific legal scenarios 

While attorney-client privilege is widely recognized in court proceedings, its application can vary depending on the case. Here are a few scenarios where attorneys have to navigate privileged communication carefully: 

Family law cases: spousal privilege and mental health disclosures 

• In civil proceedings involving divorce, child custody, or domestic disputes, attorneys must consider spousal privilege, which protects certain oral communication between spouses. However, this privilege is not absolute and can be waived under specific conditions, such as cases involving criminal conduct or child abuse. 
• Cases involving a family therapist or social worker may introduce another layer of confidentiality, as communications in these settings are often protected unless there is a risk of imminent danger or harm. 

Criminal defense: protecting privilege in criminal proceedings 

• Attorneys representing clients in criminal proceedings must ensure that all oral communication remains protected. However, privilege does not apply when a client seeks legal counsel to commit a criminal offense or cover up criminal conduct. 
• Criminal investigations often bring challenges, as law enforcement may attempt to bypass attorney-client privilege by subpoenaing phone records, emails, or text messages. This makes it essential for attorneys to use secure communication channels. 
• In cases involving a union representative, attorneys must recognize that attorney-client privilege does not automatically extend to union representatives. While discussions between attorneys and union representatives may be confidential, they do not always qualify as privileged communication unless the representative is acting under the direct legal representation of the attorney. This distinction is critical when handling labor-related disputes, as any disclosure to a third party (even a union official) could risk waiving privilege. 

Employment and professional disputes: unions and workplace confidentiality 

• Legal cases involving union representatives or employment disputes often involve sensitive confidential information related to workplace grievances. Attorneys representing employees must ensure that all civil actions or labor disputes maintain attorney-client confidentiality, even when dealing with official capacity communications. 
• A case involving a social worker or professional capacity role, such as a medical services provider, may introduce additional concerns about privilege, especially when discussing sensitive topics like mental health or a client’s mental condition. 

Court-ordered disclosures and exceptions to privilege 

• While privileged communication is fundamental in the United States legal system, courts may order compelled disclosure only under specific legal exceptions, such as the crime-fraud exception or cases where public safety concerns override privilege.  
  • Courts follow strict standards to determine whether privilege can be pierced, and attorneys should take proactive steps to protect privileged information from unnecessary exposure. 
• Attorneys must also navigate exceptions in cases where professional ethics require disclosure—such as when a social worker, school counselor, or family therapist is mandated to report suspected child abuse. 

The role of secure communication in high-stakes cases 

• Whether handling a criminal proceeding, civil action, or legal separation, attorneys must be proactive in securing privileged communication while ensuring compliance with ABA recommendations on electronic communication security. Utilizing secure, encrypted platforms designed for legal professionals can help attorneys maintain confidential relations and avoid inadvertent disclosure. 
• Secure platforms like CloudLex can help attorneys keep all attorney-client relationship communications within a HIPAA-compliant, encrypted environment, ensuring that sensitive case information remains protected. 

How CloudLex helps law firms secure privileged communication 

A single unsecured message could create challenges in a case. Attorneys need a compliant, secure communication platform designed specifically for legal professionals. 

1. Keep personal and work communication separate 

With CloudLex’s 2-Way Text, you get a dedicated phone number for client messaging—so you can communicate securely without exposing your personal number. 

2. Secure, matter-specific messaging 

CloudLex enables encrypted, matter-specific messaging, so every conversation stays within the case file. No more searching through personal texts or emails. 

3. HIPAA-Compliant data protection 

All messages, documents, and shared files are encrypted and stored on a HIPAA-compliant server, preventing inadvertent disclosure and maintaining privilege. 

4. Easy document and multimedia sharing 

Need to send a deposition transcript, legal brief, or video evidence? CloudLex allows secure sharing of confidential information while keeping records organized and accessible. 

5. Full compliance and audit trail 

CloudLex automatically logs communication, ensuring every message is documented in case of a court order or judicial proceeding. 

Make privileged communication a priority 

As attorneys, protecting privileged communication is not just about compliance—it’s about maintaining trust with clients and ensuring the integrity of your legal practice. 

Ensuring attorney-client privilege remains intact is more complex than ever, but modern legal technology offers solutions. CloudLex provides attorneys with a secure, HIPAA-compliant platform to streamline communication and safeguard privileged information without compromising efficiency. 

Protect your firm’s communications today—learn more about CloudLex.