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Tuesday, November 16, 2010

Private Internet Searches and the Attorney-Client Privilege

Internet searchers afraid that Google records and retains data about their searches, and other data in order to do behavioral analysis (whether for marketing or other purposes) may want to try out http://www.startpage.com.

The Startpage engine promises anonymous internet searching. In addition, a newer feature called Startingpage promises Google search results while also providing a buffer (or anonymous cloaking) for users.
This may be a very worthwhile search engine tool for those people afraid that Google is tracking the web browser activity of anyone who uses its sites.

This search engine tool should be of particular interest for those professionals whose work activity involves sensitive or confidential information. High-ranking business executives, government officials, investigators, auditors and almost all lawyers should consider using a cloaking service such as Startpage to enhance their anonymity and protect the confidentiality of their clients and their data.

Lawyers -- particularly anyone involved in criminal defense, regulatory defense, government investigations or internal investigations -- should be especially interested. The attorney-client privilege can be compromised if there is no reasonable expectation of privacy in a communication. There is a possibility that courts could rule that the client's privilege as to his/her communications with his/her lawyer may be lost, due to electronic communications that may be so readily accessible (that is, by being interceptible) that there was no legitimate expectation of the confidential nature of the communication being preserved. The result could be the admission into evidence of communications between lawyer and client which the client thought were confidential. Cases can be lost on such decisions; criminal cases may also be lost or become more likely to result in guilty pleas. And as communications can led to multiple inferences (including clearly erroneous ones), one can see the potential for miscarriages of justice and even wrongful investigations, prosecutions and convictions on the basis of revealed, intended-to-be-confidential communications which are taken out of context and manipulated.

The consequences of this development could be far-reaching. Such a ruling could deter clients from sharing vital -- and perhaps case-breaking or deal-breaking -- data with their lawyers. This would make lawyers' jobs more difficult, and raise the specter of lawyers being more easily accused of negligence, incompetence or malpractice. One can even see the day when lawyers' professional malpractice policies preclude or restrict their internet communications as a condition of the policy being granted. And what's the next domino to fall? Lawyers may stop doing certain investigative work (not that many are doing it now, much less doing it well) or even avoid taking certain cases because of the enhanced risk of being sued for malpractice.
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Eric Dixon is a New York lawyer who handles regulatory and investigative matters, litigation stress counseling and related matters.  He accepts press and client inquiries for comments or consultations by e-mail at edixon@NYBusinessCounsel.com and at 917-696-2442. 


Eric Dixon
Eric Dixon LLC
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