Client Confidentiality, Privacy and Quality Control Issues

When Providing LPO Services to Clients in the UK and the US

By Poorvi Chothani, Esq.

Mumbai
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LPOs: Client confidentiality & Privacy

Introduction: Legal confidentiality or attorney-client privilege is not just confidential communication that transpires between the two but much broader and includes anything that the attorney knows about the client he represents in terms of how a case needs to be handled and how it should proceed.

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Deterrents

The conservative and reluctant attitude of US and UK companies to outsource.

Their concern of loss of attorney-client privilege. The unavailability of attorney-client privilege to outsourced work to India

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Law Societys Solicitors Practice Rules 1990 (England & Wales)

Confidentiality and Disclosure Guidance
(Explanatory Notes to rule 16 E)
A solicitor has a fundamental duty to keep all clients affairs confidential. A solicitor should only share office services with other businesses if confidentiality is ensured

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 A solicitor can outsource work if he is satisfied that the provider is able to ensure confidentiality of any information. A solicitor should require confidentiality undertakings from the service provider

He should inform clients of any such services.

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American Bar Association (ABA)

Model Rules of Professional Conduct: Rule 5.1 A partner in a law firm shall make reasonable efforts to ensure that the lawyers in the firm conform to the Rules of Professional conduct. A lawyer having direct supervisory authority over another should ensure that the other lawyer conforms to the Rules of Professional conduct.
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Rule 5.3

The conduct of all non-lawyers that they employ or retain is compatible with the professional obligations of the lawyer.
Rule 6.1 A Lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.
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Katz v. United States

Two part test of privacy:
First, the person must have an actual expectation of privacy.

Second, that expectation must be objectively reasonable.

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Some US Laws

Graham-Leach-Bliley Act 1999 (GLBA) Fair Credit Reporting Act The Sarbanes-Oxley (SOX) Act Right to Financial Privacy Act The Health Insurance Portability and Accountability Act (HIPAA) The Childrens Online Privacy Protection Act (COPPA)

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Indian Laws
Bar Council of India Rules Indian Evidence Act 1872 The Advocates Act 1961 Information Technology Act 2000

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Safety Measures
Address data security concerns.
Protect confidential information by redacting. Ensure security measures by providers.

Ensure stripping of meta-data & track changes.

Insist on client data to be stored on separate storage devices.

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 Ensure quality control mechanism. Ask for creation of Chinese walls. Sign confidential agreements with providers.

Secure encryption of mails

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Quality Control

********* Some Protective Measures

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Protection of Confidential and Personal Information Regular Security Audit Employee Confidentiality

Data Security
Physical Security

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Conclusion
Consult professionals who deal with legal ethics before setting up an LPO. Consider your ability to comply with ethical requirements and obligation of supervision. High level of legal analysis work can be expected when confidence is gained in the system.

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Thank You

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