As the recent Twitter hack has so aptly demonstrated, no social media platform is immune to systemic attacks, and we may never know the extent to which private direct messages on that platform were compromised. Hopefully most attorneys have always avoided using Twitter DMs for confidential communications with their clients, but given the recent hack I believe that doing so now would almost certainly violate the Model Rules of Professional Conduct. As the American Bar Association's Standing Committee on Ethics and Professional Responsibility has stated in Formal Opinion 477:
A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access to information relating to the representation. However, a lawyer may be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.
https://www.americanbar.org/content/dam/aba/images/abanews/FormalOpinion477.pdf
Twitter DMs may seem like a no-brainer, but what about Telegram Messenger? One of the facts that really jumped out at me while reading Judge Castel's March 24, 2020 Opinion & Order in SEC v. Telegram was the following:
[Telegram] Messenger generates no revenues; nearly all of Messenger’s expenses prior to 2018, including salaries and server costs, were paid for by Pavel [Durov - the founder of Telegram] out of his personal fortune.
After receiving the $1.7 billion from the private offering of 2.9 billion Grams, Telegram used this newly raised capital to cover “way over 90 percent” of Telegram’s expenses, which includes the costs of Messenger.
https://gulovsen.io/wp-content/uploads/2020/07/telegram_opinion.pdf
Here's the thing, though - following the decision rendered by Judge Castel in March, Telegram agreed to give the money back to investors. Ergo, since Messenger still doesn't actually generate any revenue (thanks to the SEC 😅) any continued development/support of Messenger is presumably going to rely exclusively on Pavel Durov's willingness to continue paying out of his own pocket to support the platform...
For any attorney to rely on the selflessness of Pavel Durov (who seems like an okay guy by the way, so no disrespect intended) to maintain the security of the platform that you use to communicate confidential information with your clients just seems like A REALLY BAD IDEA. So please, if you are an attorney doing this, stop now and move to a more secure platform. Thanks.
