What should lawyers think about when considering video-conferencing meetings?

Over the past month, many law firms and lawyers made a rapid transition to meeting and providing some legal services virtually, using video-conferencing technology. Some of these solutions are likely to endure even after the COVID-19 pandemic has subsided. Lawyers who are working remotely are beginning to turn their mind which videoconferencing products and platforms are the best ones for facilitating meetings with clients, other lawyers and their employees, while maintaining client confidentiality and security of records.

There are several video-conferencing products on the market including Skype for Business, Zoom, Amazon Chime, Microsoft Teams, Cisco’s Webex Meetings, TeamViewer, GoToMeetings, Signal, Jabber, and the ones associated with particular operating systems, such as Facetime and WhatsApp. Each has different advantages and disadvantages. Some support up to 100 participants. Some, but not all, offer end-to-end encryption that is difficult to hack. The Law Society cannot endorse particular products. Our goal is to provide you with background information that helps you to choose what works best for you.

Setting up your home office

Before deciding on which video-conferencing platform to use, it is important to set up an appropriate space for working with confidential communications. Even a home office has to take into account how to keep client and other confidential information protected from family members and others. The conditions you should be looking for in your home office or remote workplace should include:

  • Working in a private area;
  • Protecting your passwords and locking your computer if it is left unattended; and
  • Ensuring there is a space for taking calls where conversations will not be overheard.

The Office of the Information and Privacy Commissioner for British Columbia has developed a Protecting Personal Information Away from the Office resource that provides guidelines on how to keep information secure when working remotely. The Law Society’s Lawyers Sharing Space is a practice resource that offers tips and information about sharing space with people who are not lawyers in your firm.

It is also important to ensure there are reasonable security arrangements against all risks of loss, destruction, and unauthorized access, use or disclosure of your records. Take steps to put into place technological, physical, and organizational safeguards specific to working from home for you and your staff. You can test your home or remote office set-up using the Securing Personal Information: A Self-Assessment Tool for Organizations from the BC OIPC in regard to establishing and maintaining reasonable security arrangements.

Is video-conferencing the best option in the circumstances?

There has been a flood of media reports about the security (or lack thereof) of video conference software. It can be hard to know how to keep meetings secure. Although many video-conferencing products include security settings such as end-to-end encryption that can prevent hacking, often users are left with little to no security training to configure these settings. If technology is not your forte, it is a good idea to have an IT professional assist you with setting things up if you can.

When it comes to what is the appropriate degree of security for your situation, it will depend upon the nature of the conversations and business you are transacting. Even with virtual transactions, Code rule 3.2-1 applies. Commentary [3] to the rule states that what is effective communication will vary depending on the nature of the retainer, the needs and sophistication of the client and the need for the client to make fully informed decisions and provide instructions.

In any event, if the conversation to be had is of a deeply sensitive nature, confidentiality and security may be better achieved with a phone call rather than a video-call. Conversely, if the purpose of the video-call is a social check-in with an employee, a lawyer may reasonably be less concerned about making a video call.

Many video-calls fall somewhere between the two scenarios outlined above. For example, you may have planned to call a client just to check in about how they are managing their business through the current pandemic, the client may move from giving a general summary to seeking advice or services about a particular problem. You should consider what you intend to discuss, and whether that conversation is confidential or privileged, to seek out a software with sufficiently robust security features. Features lawyers may want to seek out include:

  • End-to-end encryption;
  • Ability to set up a meeting ID, which is randomized and is assigned to each meeting to keep credentials private;
  • Ability to set up participant passcodes, which are a second level of authentication that can be enabled for each meeting;
  • A way for the host to lock the meeting;
  • A way to expel participants;
  • Waiting room features which allow participants to wait in a separate virtual room before the meeting and allow the host to admit only people who are supposed to be in the room.

In addition to the above, use a firewall to prevent unauthorized network traffic from reaching your devices, and always make sure that you use the latest version of the operating system you have chosen to video conference your clients. 

Selecting a service provider

Many video-conference tools engage cloud-based services. The Cloud Computing Checklist is a helpful tool in determining whether a product is compliant with the Law Society’s requirements. Answers to the questions in the checklist can often be answered by reviewing publicly available sources and the service provider’s terms of service.

It is a good idea to consider using an enterprise software (rather than personal, consumer-grade) for client meetings. Consumer tools may not have all the administrative and security tools you need to ensure that a call is private. Although no video-conferencing service can guarantee 100% protection from threats, you are much more likely to get a more complete set of security tools with products geared for enterprise use.

Best practices for video-conferencing

When using video-conferencing for the provision of legal advice or services, lawyers should:

  • Advise the client not to share the links with anyone else;
  • Access the links through a secured Wi-Fi network;
  • Confirm the client’s consent to proceed in this manner;
  • Ask that all individuals in the remote location introduce themselves;
  • Ensure no one else is at the remote location who may be improperly influencing the client;
  • Make sure that audio and video feeds are stable and that you can hear and see all parties;
  • Do not allow clients to screen share by default. As the host you should be able to manage the screen sharing;
  • Do lock the meeting once the client or clients have joined the call;
  • Where identification is produced to support verification of identity, ensure that a copy of the document (front and back) is sent to you in advance of the online meeting (consider requesting high resolution) and that when it is produced during the meeting the entire document is visible and legible;
  • Determine how to provide the client with copies of the document executed remotely;
  • Confirm your client’s understanding about the documents they are executing and provide adequate opportunity for them to ask questions during the video conference; and
  • Maintain detailed records including: date, start and end time, method of communication, identity of all present, and minutes of content of meeting.

Many products provide the ability to record the video-conference meeting, and as part of maintaining detailed records, you may think about recording the conversation between you and your client. Ensure you abide by Code rule 7.2-3 which states that a lawyer must not use any device to record a conversation between the lawyer and a client or another lawyer, even if lawful, without first informing the other person of the intention to do so.

Risks and tips when using video-conferencing technology

Review LIF’s risk management tips for video-conferencing here to reduce the risk of a negligence claim.

Questions

If you would like to discuss a specific issue regarding video-conference software with a practice advisor, please feel free to contact practiceadvice@lsbc.org.