Reevaluating Attorney-Client Privilege in the Age of Hackers

The news story is now familiar: hackers breach a security system and post internal, confidential information online for anyone with an Internet connection to comb through. This digital version of whistleblowing, called “hacktivism,” is attractive to the media, which has leaned on broad First Amendment protections to widely cover the confidential communications revealed by hackers. These hacks also provide attorneys with enticing opportunities to look through previously confidential files. But as ethics and evidentiary rules stand, it is not clear if an attorney may view the files, let alone use them as evidence in litigation. That companies are hacked is now predictable, yet how courts evaluate a claim of privilege after the file has been released to the public by a hacker and reported on extensively by the media is anything but. Current ethics rules place a burden to protect attorney-client privilege on the “receiving” party of such files. This note proposes new ethics rules to guide attorneys in the event of a publicized hack. Further this note suggests that, when evaluating a party’s claim of privilege, courts should consider whether finding privilege exists after a document is hacked would be a futile attempt to further the goal of the privilege: “full and frank” discussions between attorneys and clients