Sample retainer agreement provision for online client communications

Last week our newsletter was about what WhatsApp was making to its privacy practices, including sharing information and data with Facebook (Facebook owns WhatsApp). After WhatsApp’s privacy changes were announced, there was a widespread backlash.  People are rightly concerned about their privacy, and Facebook does not have a good track record regarding the issue.  In response to the public outcry, WhatsApp announced that it was delaying implementing the privacy changes from February 9th to May 15th to give users time to review and understand the changes.

Attorneys and law firms are typically extra cautious about privacy and security. Even the sharing of non-identifying data or information with Facebook should be a concern.  Once a trickle of information is shared, it could lead to a waterfall.  That is one of the reasons why many people started fleeing WhatsApp last week for other services. One of the messaging apps that saw a surge in new signups is Signal. The messaging app had such a massive number of people subscribing that its servers went down for 24 hours this past weekend.

Signal provides end-to-end encryption of messages, and its features include audio and video calls, group messaging, and sharing of files. It is owned by a nonprofit devoted to developing privacy technology. So there is likely no pressure to monetize and commercialize the app by transferring or selling user data, as opposed to the other messaging apps owned by for-profit companies.

Signal may be a good alternative to WhatsApp.  Attorneys and law firms should research messaging services and their privacy policies to find the best fits their needs while adequately securing data. Keep in mind that most states’ rules of professional conduct for attorneys include an ethical duty of technology competence. Many of those rules are modeled after Comment 8 to Rule 1.1 of the ABA’s Model Rules of Professional Conduct, which states that “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” Lawyers rely on technology, and being up-to-date on the privacy implications of using various services is becoming increasingly important.

Law firms may want to include clauses in their retainer agreements regarding the use of e-mail and messaging services so that clients are fully aware of any potential risks. The following is a sample which you should modify to meet your needs and circumstances:

Communications With Us:

The Client understands that (a) communicating with our Law Firm through e-mail or messaging service (such as WhatsApp, Signal, or Telegram) may not be a secure method of communication; (b) communications sent by e-mail or messaging services may be saved, copied and held by phones, computers, and servers; (c) persons not participating in our communications may intercept our communications by improperly accessing yours or our computer or phone, or by accessing an e-mail or messaging service providers’ servers; (d) even if contacts are deleted metadata may be retrieved and accessed which may allow the person accessing it to obtain varying amounts of information; and (d) the privacy policies of e-mail and messaging service providers may change over time and the service providers may share data related to our communications. Our Law Firm is communicating with you via e-mail and messaging services because you have consented to receive communications via these mediums. If you change your mind and want future communications to be sent differently, please let us know at once.

Request for Information

    Share This

    Share this post with your friends!