Some attorneys are likely curious as to how medical professionals are able to engage in telehealth -- using video conferences to conduct medical exams and interviews as a precursor to treatment -- when physicians are governed by doctor-patient confidentiality agreements very similar to attorney-client privilege.
Simply put, doctors require their telehealth patients to waive absolute confidentiality before engaging in a telehealth appointment. If you have ever had a "virtual doctor's visit," you almost certainly e-signed or assented to a long "consent to treatment" document that included an acknowledgement that the physician and their practice could not guarantee absolute confidentiality because the video conferencing provider did not provide a fully secure, fully private solution.
Under HIPAA, patients can waive their right to confidentiality at any time, absolving the physician or many of their responsibilities. (This is how doctors can, for example, leave confidential test-result messages on unencrypted telephone answering machines.) Lawyers, however, don't have the same easy out.
The American Bar Association Model Rules of Professional Conduct 1.6.c states that, "A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client."
Some conversations must remain privileged, and you can't ask your client -- especially when your client is your company -- to simply blanket-waive confidentiality every time you use a video conference tool. When in-person group conversations are impossible due to a pandemic or similar disaster, and one-on-one analog phone calls are insufficient, you need a means of conducting privileged remote conversations.
That means, as legal counsel, you and your client (and your company) must have complete control over who and what can observe the actual content of your privileged legal video conference conversations, as well as the metadata created by those video conferences.
That control requires two elements: Good internal video conference policy, and a great contract with your video conference solution provider.
In our latest Ebook, What Might Be Hidden Inside Your Video Conference Software Contract, we outline what legal teams need to do and know before making an “emergency” purchase of Zoom, GoToMeeting, or other video conferencing software. Download your copy today.