According to Forrester, business and technology leaders often dismiss lawyers as obstacles to productivity. Many security teams fail to fully engage legal with incident response planning because:

• Lawyers are often seen as risk-averse, disengaged advisors.
• It’s difficult to know whether you’re talking to the right lawyer.
• There is a widespread belief that incident response is the result of failure and inadequate controls.

By training, lawyers are best equipped to understand regulatory and legal risk, which makes them a critical part of your incident response team.

The Value of Attorney-Client Privilege in Incident Response

No company can accurately predict whether a security incident or breach investigation will end up as a lawsuit or regulatory fine. After working closely with legal advisors on numerous security incident and breach investigations, I can attest to the value of asserting the attorney-client privilege. Unfortunately, there seems to be a general lack of awareness and understanding around this valuable approach. Incident response teams need to understand the implications of their communications with others and how these communications can impact incident handling.

The attorney-client privilege can protect confidential communications between a lawyer and an incident response team. When asserted, it can prevent the disclosure of these privileged communications. The purpose of the attorney-client privilege is to encourage open communication while minimizing the risk of disclosing these communications to opposing parties.

Four Basic Types of Attorney-Client Privilege

Communications, both written and oral, may have to be disclosed in an investigation if the parties do not maintain the attorney-client privilege. Such communications, including inaccurate ones, can then be used as evidence against your company.

There are four basic types of communications to which the attorney-client privilege applies.

1. Written, oral or electronic communications: It is recommended that written or electronic communications be marked “Attorney-Client Communication — Privileged and Confidential.” This provides the intent of the communication.
2. Communications made between privileged persons: This may include the incident response team and the attorney designated to handle the issue, or a paralegal or assistant working on behalf of the attorney.
3. Communications made in confidence: This means it should be made with the intent that the communication remain confidential. There should be no communication regarding the issue at hand except with persons who have a need to know. Any communication should be stored in a separate, secure location with limited access to assure it remains confidential.
4. Communications for the purpose of seeking, obtaining or providing legal assistance: The communications should be for the purpose of obtaining or providing legal advice and counsel, which is imperative whenever a breach or regulatory investigation is involved.

Failure to follow these guidelines may result in a waiver of the privilege itself, which could result in communications that have to be revealed in a lawsuit or regulatory investigation. If a court concludes that privilege has been waived, then all confidential attorney-client communications in the matter may have to be revealed as well.

Keep Your Communications Confidential

How and with whom you communicate can make an enormous difference in the outcome of a lawsuit or regulatory investigation. The attorney-client privilege is well-established as a legal doctrine that protects confidential communications. However, its application is not a 100 percent guarantee that communications will remain confidential.

By taking the time to gain a basic understanding of the attorney-client privilege, your company can potentially obtain legal advice while protecting your communications, instead of inadvertently creating evidence for the opposing party.