The charm of Powerful Trouble: The COVID-19 Pandemic, Practicing Law Remotely, and Voice-Activated Assistants in the Home
Prepared by Gaby Reeves
4.3.20
Prior to the COVID-19 Pandemic, most lawyers worked primarily in their offices, working remotely only if circumstances made it necessary that they do so. Present circumstances require them to do so. The relative ease with which the legal community transitioned to working remotely in the face of the COVID-19 Pandemic indicates that the remote practice of law probably will become the “new normal” once the Pandemic ends. Lawyers know that working remotely carries a risk of violating their ethical obligations to their clients, but probably have not considered the increased risk of doing so associated with working from their homes for a lengthy or possibly permanent period. This comment concerns only one source of those potential risks – voice-activated assistants in the home. Most people, lawyers included, have some type of voice-activated assistant in their homes, (e.g., Amazon’s Echo Dot, Alexa, Google Home), and have grown so accustomed to the convenience afforded by these devices that they no longer consider the extent of device’s capabilities. Locked-down lawyers beware: “Fair is foul, and foul is fair.”[1]
Client Confidentiality
An attorney’s ethical obligation to maintain client confidentiality is one of the oldest principles of the attorney-client relationship. The purpose and scope of the privilege has not changed in American law since 1888. In Hunt v. Blackburn, the United States Supreme Court stated as follows:
The rule which places the seal of secrecy upon communications between client and attorney is founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of the disclosure. But the privilege is that of the client alone, and no rule prohibits the latter from divulging his own secrets. [2]
The ruling in Hunt is reflected in Alabama Rule of Professional Conduct 1.6, which provides, “A lawyer shall not reveal information relating to the representation of a client unless the client consents after consultation” or is otherwise authorized as set forth in the Rule.[3] Alabama Rule of Professional Conduct 1.1 obligates a lawyer to “provide competent representation to a client.”[4] The duty of competent representation includes the duty maintain competence by “engag[ing] in continuing study and education.”[5] Given the increased use of technology in the practice of law, maintaining competence includes keeping current with changes in technology that could benefit or, more importantly, may harm a client.
In 2012, the American Bar Association (“ABA”) amended both Model Rule of Professional Conduct 1.6 and 1.1. Rule 1.6 was amended to add the following obligation:
(c) 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.[6]
Amended Comment (18) to Rule 1.6, explains that:
Paragraph (c) requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.[7]
This appears only to emphasize the ethical obligation to maintain client confidentiality rather than to expand its scope until it is read in conjunction with the 2012 Amended Comment (8) to Rule 1.1, which states:
MAINTAINING COMPETENCE
(8) To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.[8]
Although Alabama has not adopted the 2012 amendments to Model Rules of Professional Conduct 1.1 and 1.6, the amendments make clear that a lawyer can no longer plead ignorance of technological developments in the practice of law. With the increased number of lawyers currently practicing from their homes – a number that likely with increase even after the Pandemic – a lawyer’s obligation to remain informed as to technological developments extends to the potential risks to protection of the attorney-client privilege posed by the use of personal technology in his home, including voice-activated devices.
As to Rule 1.1, do you know how your voice-activated assistant actually works beyond saying, “Alexa,” making a request, and receiving a response? All voice-activated assistants are activated by a “wake-up word,” e.g., “Alexa” or “Ok, Google.” When the device “hears” its wake-up word, it records the speaker’s request to a server that accesses the request and forms a response.[9] The server then sends the response to the device, which communicates it to the requestor. Contrary to popular belief, a voice-activated device is not “off” until it “hears” its wake-up word; the device’s microphone is always on, listening for the wake-up word. And, because the device is always listening, it is always recording to the server.[10] Most manufacturers now provide processes that allow consumers to erase past voice recordings from their devices, but erasing a recording from the actual device does not necessarily remove it from the server.
In a May 2019 letter to Senator Christopher Coons of Delaware, Amazon stated that, while it provides for an owner to erase voice recordings, it “may still retain other records of customers’ Alexa interactions….” [11] Amazon’s privacy notice regarding Alexa plainly states that it shares voice recordings with third parties: “We provide ad companies with information that allows them to serve you with more useful and relevant Amazon ads and to measure their effectiveness,”[12] so the owner of the device is charged with knowledge of that their voice recordings are shared with third-parties.[13] Therefore, mentioning a client’s name or anything relevant to your representation of him is highly susceptible to being recorded by your voice-activated assistant, streamed to a server, where it will be retained and then shared with third-parties. Bear in mind that these same principles also apply to voice-activated platforms on cellular telephones, (e.g., Siri), smart TVs, and personal computers. In addition, your client’s information is not just at risk of being recorded by your cell phone or computer or other personal voice-activated devices; it can also be recorded by those belonging to any member of your household.
The only way to ensure that the attorney-client privilege is protected from your voice-activated spy, I mean, assistant is to UNPLUG it while you are working remotely from home. Do not simply move it to another room. In the case of voice-activated platforms on your cell phone, personal computer, or smart television, DEACTIVATE the platform and have all other members of your household do the same with their devices. If you are on a video or telephone conference with a client, warn him of the risk of waiving his attorney-client privilege posed by voice-activated devices/platforms, advise him that you have deactivated all such devices in your home, and recommend that he do the same. Only when you eliminate the risk of violating your ethical obligation not to divulge privileged client information is “the charm is firm and good.” [14]
[1] William Shakespeare, Macbeth, Act I, Scene I
[2] Hunt v. Blackburn, 128 U.S. 464, 470, 9 S. Ct. 125, 127, 32 L. Ed. 488 (1888)
[3] Ala. Rules of Prof’l Conduct r. 1.6(a). See also Ala. Rules Prof’l Conduct r. 1.6 cmt.
[4] Ala. Rules of Prof’l Conduct r. 1.1.
[5] Ala. Rules Prof’l Conduct r. 1.1 cmt
[6] Model Rules of Prof’l Conduct r. 1.6(c) (Am. Bar Ass’n 2012).
[7] Id. r. 1.6 cmt. (18) (emphasis added).
[8] Model Rules of Prof’l Conduct r. 1.1 cmt. (8) (Am. Bar Ass’n 2012) (emphasis added).
[9] Whitney L. Hosey, COMMENT: ALEXA, TRANSMIT CLIENT DATA TO AMAZON: ETHICAL CONSIDERATIONS FOR ATTORNEYS LOOKING FORWARD TO VIRTUAL ASSISTANTS, 19 Wake Forest J. Bus. & Intell. Prop. L. 51, 54 (2018), n 21.
[10] Id. n 24.
[11] B. Huseman, Vice-President, Public Policy, Amazon to Senator C. Coons, June 28, 2019.
[12] Alexa Terms of Use, Jan. 1, 2020.
[13] These devices do not just listen for the specific owner’s voice. A device can be activated by anyone in the vicinity saying its name or something that just sounds like its name. Whitney L. Hosey, COMMENT: ALEXA, TRANSMIT CLIENT DATA TO AMAZON: ETHICAL CONSIDERATIONS FOR ATTORNEYS LOOKING FORWARD TO VIRTUAL ASSISTANTS, 19 Wake Forest J. Bus. & Intell. Prop. L. 51, 55 (2018), n 28
[14] William Shakespeare, Macbeth, Act 4, Scene 1.
About Christian & Small
Christian & Small LLP represents a diverse clientele throughout Alabama, the Southeast and the nation with clients ranging from individuals and closely-held businesses to Fortune 500 corporations. By matching highly experienced lawyers with specific client needs, Christian & Small develops innovative, effective and efficient solutions for clients. With offices in Birmingham, metro-Jackson, Mississippi, and the Alabama Gulf Coast, Christian & Small focuses on the areas of litigation and business, is a member of the International Society of Primerus Law Firms, and is the only Alabama-based member firm in the Leadership Council on Legal Diversity. Our corporate social responsibility program is focused on education, and diversity is one of Christian & Small’s core values. Please visit www.csattorneys.com for more information.
No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.