# Where would attorneys keep records of protected client conversations?



## ironpony (Aug 21, 2016)

For my story, basically a defendant has a lawyer who got him off in court, on felony charges. The main character wants to find out the truth about the case and wants to find out more, even if it means breaking and entering. He wants to find out the truth, and the only time the defendant might have logically told anyone the truth, was to his attorney, in a protected conversation, so the attorney knows what to build a defense from.

However, where would the attorney keep the record, or his notes of the protected conversation, which he would have used to build a defense? Would it be kept in the case file, in a file cabinet, at the law firm, or would the attorney, keep it somewhere else?

Thank you very much for the advice, anyone. I really appreciate it.


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## Sleepwriter (Aug 21, 2016)

If the client told him information that would incriminate him, the lawyer would not write it down anywhere for the exact reason you have posted your question.


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## ironpony (Aug 21, 2016)

But I thought that the conversation between a client and a lawyer was a protected conversation.  So if was protected, wouldn't writing it down, do no legal harm, since it's protected legally, and therefore, cannot be used?

The lawyer is not expecting someone to break into the office to look at the file.  And the person who is looking at the file is just looking at it, cause he is obsessed with the truth.  The file cannot be used as evidence cause it's protected, so why would the lawyer legally care if someone broke in and read it, since he wouldn't be facing any trouble legally?   The file doesn't incriminate the client either, cause it's a legally protected conversation, right?

Doesn't a legally protected conversation mean that if the lawyer wrote it down, than the conversation would not incriminate the client, cause it's legally protected.  I thought that a legally protected conversation, meant immunity from the conversation being used as incrimination.


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## per se (Aug 24, 2016)

The following is offered with the caveat that my experience is with civil, not criminal, litigation.

Communications with the client are typically documented and kept in a file indexed either by case or by client. Most often, protected (privileged) client communications and notes of conversations will be kept with the case file, but in a separate file or sub-file (e.g. manila folder within an expandable file). This will sometimes be marked quite conspicuously to prevent inadvertent disclosure to the opposing side, with something such as DO NOT PRODUCE--PRIVILEGED, and may be in a different color folder. Generally these files are kept in file cabinets. They may be located near the attorney's office, the secretary or paralegal's desk, or in a file room, depending on the size and layout of the office. While most file cabinets have a locking mechanism, they are not generally kept locked, as long as they are behind locked doors of the office.

Many firms nowadays are moving to electronic storage of all documents (paperless), so that anything other than original signed documents (which may someday be needed as evidence) are kept on computer files. If there is more than one attorney working on the case, there may be email summaries of client conversations, as well as discussions of strategy centering on crucial pieces of information or evidence in the case. These will also be privileged and protected from disclosure. Of course, any computer files will be password protected.

While I agree with Sleepwriter that the attorney may not document it anywhere if the client disclosed the ultimate fact of guilt, there are certainly factual details that would be written down, which may turn out to be incriminating when viewed in light of other information.

Hope this helps.


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## ironpony (Dec 17, 2016)

Okay thanks.  However, when I asked a cop before, he said that the police are never allowed to use attorney/client privileged conversations as evidence, under any circumstances.  So I am confused now.  If someone actually said in a recorded conversation with the lawyer, that he committed murder, and gave a detailed confession, can it be used as evidence... or not, since it's a privileged conversation legally, and therefore, the killer would have nothing to worry about?


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## Ptolemy (Dec 17, 2016)

ironpony said:


> Okay thanks.  However, when I asked a cop before, he said that the police are never allowed to use attorney/client privileged conversations as evidence, under any circumstances.  So I am confused now.  If someone actually said in a recorded conversation with the lawyer, that he committed murder, and gave a detailed confession, can it be used as evidence... or not, since it's a privileged conversation legally, and therefore, the killer would have nothing to worry about?


Legally he cannot use an attorney document as evidence, your cop "source" is correct.


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## ironpony (Dec 17, 2016)

Okay then.  But if that's true, then how come lawyers never write down anything in their cases, and have to memorize it in their heads?  If a case file got out that the client is the killer in the file, then what would the lawyer care, since it cannot be used as evidence.  Why not write it down or record it then, for reference, since it's legally untouchable as evidence?


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## TKent (Dec 17, 2016)

I've spent over 20 of my working years at law firms in IT. Security is one of the biggest IT investments in law firms. Most people write things down. Passwords to computer with client notes can be found taped to computers. Smartphones with email communications are lost as are laptops. There is no one way that humans go about their day-to-day job. Some will take notes on pads, some will talk about it in email. You would be amazed at how hard it is to keep client data secure. So for the purposes of your story, to "get" to the data, you could do a number of things, including breaking & entering, hacking, etc. How the data is used is another subject altogether. It could be that stolen notes uncover a potential witness that no one knew about, or other information. Maybe the stolen notes reveal where a key piece of evidence can be found that can then be used in the case. Anyway, the sky's the limit!  



ironpony said:


> Okay then.  But if that's true, then how come lawyers never write down anything in their cases, and have to memorize it in their heads?  If a case file got out that the client is the killer in the file, then what would the lawyer care, since it cannot be used as evidence.  Why not write it down or record it then, for reference, since it's legally untouchable as evidence?


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## ironpony (Dec 17, 2016)

Okay thanks.  Well after doing some research I found out that lawyers are not allowed to keep conversations in their files, what really happened in a case, because this would mean that they would have to share it.  If the notes got out, then the lawyer will be in serious trouble for withholding information about his client in the case.  Is that true?  I am having trouble understanding where the line is drawn, cause a lawyer cannot betray his client's trust, but at the same time, he is legally obligated to release all the information that the client tells him to the court.

So because of this, it seems like a huge contradiction or paradox for the lawyer, doing his job, so where is the line drawn, when it comes to how much a lawyer is legally allowed to withhold on his client's guilt?


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## ironpony (Jul 18, 2018)

TKent said:


> I've spent over 20 of my working years at law firms in IT. Security is one of the biggest IT investments in law firms. Most people write things down. Passwords to computer with client notes can be found taped to computers. Smartphones with email communications are lost as are laptops. There is no one way that humans go about their day-to-day job. Some will take notes on pads, some will talk about it in email. You would be amazed at how hard it is to keep client data secure. So for the purposes of your story, to "get" to the data, you could do a number of things, including breaking & entering, hacking, etc. How the data is used is another subject altogether. It could be that stolen notes uncover a potential witness that no one knew about, or other information. Maybe the stolen notes reveal where a key piece of evidence can be found that can then be used in the case. Anyway, the sky's the limit!



I was wondering, why would a lawyer tape a password to a computer?  Doesn't that defeat the purpose of a secure password?  Or do they do this so other lawyers can take over the case, on different shifts?


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## Dormouse (Jul 19, 2018)

ironpony said:


> I was wondering, why would a lawyer tape a password to a computer?  Doesn't that defeat the purpose of a secure password?  Or do they do this so other lawyers can take over the case, on different shifts?



Because they can’t remember it. As an ex IT consultant you would not believe the number of people not just lawyers that tape their password to their computer screen. Or their password is _password or 123456 or blank._​


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## ironpony (Jul 19, 2018)

Okay thanks.  So once the password is entered, is everything on the computer can then be seen though, or would their be passwords for each individual privileged case?  Do you think readers would think a password taped to the screen, would just be too easy and convenient in the writing?


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## Ralph Rotten (Jul 19, 2018)

As previously mentioned, many firms are digitizing their records so the material may be sent off site for that process. That would be a good place to steal it.

Also, banks and law firms have a special service that shreds their discarded documents. They go into a locked grey dumpster, usually in the back room, and get picked up weekly. These would be worthy targets for your villain.


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## Bloggsworth (Jul 19, 2018)

Depends on the country. In the first instance, only a fool, or Donald Trump, would tall his lawyer that he was guilty. In Australia, if a client does so and still wants to plead innocent, I believe that the lawyer has to immediately recuse themselves. My lawyer holds my will in a secure vault, I assume that they would do the same for confidential information.


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## ironpony (Jul 19, 2018)

Ralph Rotten said:


> As previously mentioned, many firms are digitizing their records so the material may be sent off site for that process. That would be a good place to steal it.
> 
> Also, banks and law firms have a special service that shreds their discarded documents. They go into a locked grey dumpster, usually in the back room, and get picked up weekly. These would be worthy targets for your villain.



Okay thanks.  But why would a lawyer shred a document?  What if the case came back later, and the lawyer needed to refer to the old case information?  Wouldn't they want to keep old cases on file, just in case?

Also, when you say "off site", what site would this be?



Bloggsworth said:


> Depends on the country. In the first instance, only a fool, or Donald Trump, would tall his lawyer that he was guilty. In Australia, if a client does so and still wants to plead innocent, I believe that the lawyer has to immediately recuse themselves. My lawyer holds my will in a secure vault, I assume that they would do the same for confidential information.



But the defendant kind of has to tell the lawyer what really happened so the lawyer can put up a defense, doesn't he?  If the client chose to remain silent, and just tell the lawyer, you figure it out, then the lawyer doesn't have a lot to work with, unless he knows what actually happened, doesn't he?  Now in my story, the defendant doesn't have to say that he actually committed a crime, but he does tell the lawyer who he was at the scene with, in order to help his case.

That person that he was at the scene with, is what the main character wants to know, and then once he breaks into the files and finds out who that person is, he can go from there.  But wouldn't the defendant still tell him who he was at the scene with?


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## RobbieO (Sep 24, 2018)

ironpony said:


> I was wondering, why would a lawyer tape a password to a computer?  Doesn't that defeat the purpose of a secure password?  Or do they do this so other lawyers can take over the case, on different shifts?



You'd be amazed.  I am aware of a local bank that failed a secret security test (known as a penetration test or PenTest for short).  They had logins and passwords sticky-noted to their monitors in plain view.  A man once wired himself several million dollars from offshore accounts (at a different bank than my local one of course).  He did this because the Secure Worldwide International Funds Transfter (SWIFT) network password changed daily and was therefore written down and posted in the breakroom on the bulletin board!!  Not only that, it was short enough to remember without writing down.  Passwords are absolutely vulnerable in this way.

To the main question, if I were an attorney and were going to do something as idiotic as record incriminating evidence against my own client, I would store it in a linux-based word editor file on a flash drive formatted with a program called TrueCrypt inside a hidden volume protected by a triple rolling encryption algorithm of twofish-AES-serpent requiring an additional secret keyfile to unlock.  That keyfile would have a unique hash value and would probably be stored on an inconspicuous device like the internal memory of a digital camera or something.  In other words, nobody short of the NSA is going to be able to decrypt it and even that is questionable.


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## ironpony (Sep 24, 2018)

Well I asked other people and other people said that lawyers do not write anything down about the case on the client.  But why is that though?  I mean it's privileged information so it's safe legally.  But they still don't write anything down I am told. Why not then, if it's privileged?


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## RobbieO (Sep 27, 2018)

Because if it reveals incriminating evidence about that person, investigators can find other ways to obtain that information since they already know it to be true beforehand.  They can't cite the attorney's notes as the source of that information, but they can find the same information from other sources and cite THAT as how they obtained it and still remained in the boundaries of the law doing it.


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## ironpony (Sep 29, 2018)

Okay thanks, but if the police are just going to find out that information anyway, then again why does it matter if the attorney is writing it down, for his own personal memory?  They are going to find it anyway, you are saying, right, so why does it matter if the lawyer writes it down then?


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