Opinion: The Future of Solicitor–Client Privilege in a Digital Age

Solicitor–client privilege is a cornerstone of legal practice. It demands that communications between a solicitor and client remain confidential, fostering candour that enables effective legal representation. Yet the digital transformation of legal services — cloud storage, messaging apps and cross-border data flows — creates real tensions for the doctrine. This opinion piece considers how privilege must evolve in practice while remaining robust in principle.

Privilege under pressure

Several modern developments test privilege:

• Cloud-based storage: Client files stored on third-party servers create questions about access and confidentiality.
• Third-party tools: Using project management software, e-signatures and AI analytics introduces processors into the communications chain.
• Cross-border data flows: Data stored in overseas data centres may fall under foreign legal processes, risking disclosure.

These developments do not eliminate privilege, but they demand careful management and transparency.

Principles to preserve privilege

To maintain privilege in a digital world, solicitors should adhere to three principles:

1. Control: Maintain clear policies on where privileged material is stored and who has access.
2. Minimal exposure: Use tools that limit third-party exposure and select vendors with contractual and technical safeguards.
3. Documentation: Keep records of decisions about storage, third-party use and consent where relevant.

Practical contract and vendor due diligence

Firms should negotiate vendor terms that:

• Clarify that the vendor acts as a processor, not a controller, of the data
• Provide robust technical and organisational measures including encryption and restricted access
• Offer data residency options and rapid notification of legal requests

Where vendors cannot or will not provide such commitments, firms should avoid using them for privileged material.

Client communications and consent

Transparency with clients is crucial. Inform them when third-party tools are used and obtain consent for non-privileged workflows. For privileged communications, maintain direct solicitor–client channels — encrypted email, secure portals or in-person meetings where appropriate.

Judicial and regulatory approaches

Courts have recognised privilege’s adaptability; the focus remains on substance over form. Privilege attaches to communications made for the purpose of legal advice, regardless of medium, provided confidentiality is preserved. Regulators expect firms to implement reasonable cybersecurity measures and disclose risks to clients where appropriate.

Emerging challenges: AI and metadata

AI tools and metadata embedded in documents raise new questions. Metadata may reveal privileged strategy if shared with third-party platforms. Similarly, uploading privileged documents to AI vendors can risk retention and training use. Firms must anonymise or avoid such uploads unless contractual safeguards exist.

Recommendations for practice

• Maintain a privileged-content policy and train staff on its application
• Use dedicated private cloud instances for highly sensitive material
• Redact or segregate non-privileged data before sharing with vendors
• Document vendor assessments and keep a register of where privileged data is stored

Conclusion

Privilege will continue to protect core solicitor–client communications, but the duty of confidentiality requires active guardianship in a digital age. Solicitors must be proactive: vet vendors, limit exposure of privileged material, and explain risks to clients. Done well, digital tools will enhance legal practice without undermining the trust that privilege represents. The future of privilege is not to retreat from technology, but to apply prudential, rights-respecting controls that preserve client confidence in modern practice.