Virtual Paralegals in Litigation Part 3: Confidentially Speaking

Can a virtual paralegal benefit a solo or small office litigation practice? Absolutely! The purpose of this series is to discuss those benefits, and answer some of the questions litigators have about working with a virtual or remote working paralegal.

In recent posts I discussed a way to think about the title "virtual paralegal," and the common, readily available technologies used in working with a virtual paralegal.

Today we discuss another area to investigate when contemplating working with a virtual paralegal:

Security and confidentiality. All attorneys have a legal and ethical responsibility to ensure the security of all their clients’ confidential documents, as well as their own work product. They have a duty to strictly maintain the privileged nature of all their communications with their clients. Naturally, they are reasonably concerned that their staff – whether employees or contractors – treat all documents and communications with the same diligent care.

These concerns lead attorneys to be careful about how and with whom files and documents are shared. While attorneys, and perhaps even staff, work from home, they do so with these security and confidentiality needs in mind. Although documents are routinely exchanged with clients, experts, witnesses and co-counsel via hard copy, email, fax and other means, lawyers assure themselves that this information will be handled with appropriate confidentiality. These same concerns apply to exchange of documents and information with a virtual paralegal too.

It is incumbent upon the virtual paralegal to provide reliable evidence that she or he can maintain strict security of all paper and digital files. Any lawyer contemplating hiring a remote working paralegal will want to inquire into her business practices.

• How does the paralegal secure and store paper and electronic files? 
• How long are paper or digital copies retained, if at all? 
• What computer back-up systems are used to ensure that files are not deleted or otherwise lost? 
• What security measures are taken with computer files, on-line storage, and back-up files to prevent disclosure? 
• Does the paralegal's system have a firewall and secured WiFi? 
• Are the cloud or internet based software the paralegal uses encrypted?

Paralegals, whether employee or contractor, share with attorneys an ethical duty of confidentiality. The ABA Model Rules of Professional Conduct, state rules modeled thereon, and guidelines for paralegals adopted by state bar associations, state courts and paralegal professional organizations, all require paralegals to guard the confidentiality of all client information. This duty of confidentiality applies as firmly to paralegals working remotely as it does to a law firm's own staff.

Moreover, these issues should be addressed in the contractor agreement executed between the attorney and paralegal before any work is performed. The agreement should at a minimum state that the paralegal will not disclose, by any means, information regarding the attorney’s business processes, clients, or client information.  The agreement should also discuss the virtual paralegal’s business practices regarding document retention and security.

So you see, with a firm understanding of a virtual paralegal's business practices, and a contract in place, a litigator can have confidence in using the services of a virtual paralegal.

However, this leads to the another question to consider in hiring a remote working paralegal: Trust. Tune in next time for Part 4.