YourABA May 2012 Masthead

Ethics of mobile computing: Obligations, security tips

Is "password1" your secret code for protecting your electronic information and equipment? If so, you're using last year's most popular electronic password, according to ABA TECHSHOW 2012 panelists speaking on the ethics of mobile computing.

But don't congratulate yourself for keeping up with current trends. Instead, realize that you are vulnerable to hackers, especially when using such a simple and common password. And, as a lawyer, realize that you have an ethical duty to actively protect your confidential information and that of your clients.

Staying current with information technology is a professional ethics issue, the panelists noted, as it impacts a lawyer's competence and ability to keep clients' information confidential.

The vulnerability of electronic information and the subsequent need for lawyers to be reasonably informed about its security was the main theme of the presentation by Sharon D. Nelson and Tom Mighell. Nelson is president of Sensei Enterprises Inc., a computer forensics and legal technology firm in Fairfax, Va. Mighell, chair of the ABA Law Practice Management Section, is a consultant with California-based Contoural Inc., which helps companies manage electronic records and e-discovery issues.

Staying current with information technology is a professional ethics issue, the panelists noted, as it impacts a lawyer's competence and ability to keep clients' information confidential. Proposed revisions to the ABA Model Rules of Professional Conduct by the ABA Commission on Ethics 20/20 are addressing this. But although the ethical implications makes matters all the more crucial for lawyers, it isn't necessary for them to be techies per se.

"You've got to be at least marginally competent," Nelson said. "You don't need to be a technologist, but you have to know enough about the technology you're using to assure yourself that you're keeping your clients' confidences safe."

If you're uncomfortable with firewalls, antivirus protection software and such, Nelson advised, you should hire or otherwise consult with a technology expert. And all lawyers should take at least one CLE class on information technology issues each year, she added.

If a technology snafu affects a case, pleading ignorance to the judge won't work. Mighell told of a Dallas lawyer who challenged the federal court's mandatory e-filing system, arguing that because he didn't own a computer, he was being denied his constitutional right to represent his clients.

"That didn't go over very well," Mighell said.

Nelson said she knows of at least one lawyer who was sanctioned for missing a hearing because the court's email notice went unread in the lawyer's spam folder, a situation that could have been averted had the lawyer "white-listed" the court's email address so its messages could be received.

Panelists offered other observations about information security and how to protect yourself and your clients. For example, Nelson noted that the increasing popularity of Apple products are making them increasingly vulnerable to viruses, malware, hacking and other malicious activity—so it's no excuse for Mac users to be cavalier about security considerations.

Wi-Fi is another tool to be vigilant about, as the number of Wi-Fi hotspots will quadruple by 2015 to 5.8 million globally. "The more hotspots there are," Nelson said, "the more we as lawyers need to be careful in how to use them." The speakers advised to avoid Wi-Fi hotspots that show up as "free" on your device unless you are certain who the provider is, because such hotspots are almost always run by hackers. "They use the word 'free' to suck you in," said Nelson, who also urged against doing any confidential activity, such as banking or stock trading, using public Wi-Fi.

The panelists had other suggestions during their wide-ranging presentation, including:

  • Make sure all your device software is up-to-date all the time.
  • Purchase a good firewall, as built-in firewalls with Windows and Mac OS X are not sufficient, and freebies are often worth what you paid.
  • Turn off your Bluetooth signal unless you are using it, as nearby strangers with Bluetooth can easily pair with your device and steal your data.
  • Make sure your account settings in Gmail, Twitter, Facebook and other tools are set for the highest privacy and security settings.
  • If you're doing work for clients on airplanes and other confined spaces with strangers nearby, invest in a privacy screen for your laptop. Mighell and Nelson said they've been amazed by the privileged information other passengers were working on that they've easily been able to glance at.
  • Use strong alpha-numeric passwords for your files and devices, including smartphones, and change them regularly. An eight-character password can nowadays be cracked in two hours, whereas a 12-character password takes 17 years to crack, the panelists noted.
  • Use common sense, stay up to date with technology issues and, as a TV police commander would tell his officers every morning before dismissing them to their beats, "Let's be careful out there."

ABA TECHSHOW is organized by the Law Practice Management Section.

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