E-mail and internet

Communication between lawyer and client

With the increasing use of web services to communicate documents, communications between lawyer and client is much faster and cheaper.
However, there are two issues to be addressed for such communication to provided similar legal effects of communication by postal mail.
On the one hand, the digital signature certifying the corresponding legal commitment and secondly the more general problem of confidentiality.

1. The digital signature

Regarding the identification of the correspondent, the digital signature is now practically and legally fully implemented in Switzerland (see detailed information and links on the website of the Swiss Federal Office of Communications). A digital document with a certificate authenticated has therefore the same legal value as a paper document with a handwritten signature (see Article 14 paragraph 2a CO).
From 1 January 2011, with the entry into force of the federal civil and criminal procedure codes, the communication with the Swiss authorities and courts should be possible for all citizens who wish to (see Federal regulation on the subjet under this link, in German, French and Italian only). Today, the system is still rarely used because of insufficient computer skills in legal offices as well as in the courts, although this mode of communication can be legally required from the authorities.
This reluctance is even more problematic because the use of an electronic signature can also ensure confidentiality (in my experience electronic signatures provide automatic encryption when both the corresponding use them).

Following the galoping evolution of technologies, digital signature will leave place or will be bound with “blockchain” which seems to garanty better data integrity.
Recently, the swiss governement announced its ambitious intention to have the judicial dossier dematerialized by 2022.  The very limited competence in the field of internet technologies of the legal professionals will most certainly postpone this evolution and “blockchain” still has to be mastered to meet this ambitious challenge.

2. Confidentiality

With regard to confidentiality, it is undeniable that simple e-mail exchange does not meet the requirements of confidentiality as regular mail still theoretically guarantees.
In 20 years of experience, the undersigned is not aware of circumstances that could make him believe that a violation of professional secrecy or even unintentionally happened, at least with regard to the part of which the firm is responsible.
Increased monitoring of unwanted Internet traffic is now obvious. It is therefore important for the legal communities to take these new technologies very seriously.

Pierre Serge Heger – 03.09.2018     pierre.serge.heger@legalus.ch