Thanks (or no thanks) for the Memory
Brought to you by ABA ETHICSearch
Computers with hard drives and devices that contain electronic memories are everywhere in today’s law offices, from laptops to printers and from cell phones to thumb drives and tablets. Because of their capacity to store electronic data, any of these devices can warehouse enormous amounts of confidential client information. Because they are easily moveable, loseable (and stealable) there is always the looming potential for data breaches if appropriate safeguards are not taken. One frequently cited statistic is that a laptop computer is stolen every 12 seconds. See, Ellen Freedman, Jim Calloway and Reid Trautz, The Lawyer’s Guide to Mobile Computer Security(2007)
At last year’s ABA Annual Meeting, the ABA House of Delegates adopted the Ethics 20/20 Commission’s (The Commission) recommendations to amend the Model Rules to clarify a lawyer’s obligations to prevent the unauthorized disclosure of confidential client information in light of technological advancements that have become pervasive throughout the profession. (See Commission Report 105(A). The Commission added language to the Comment to Rule 1.1 Competence stating that a lawyer should have a basic understanding of the technology he uses in his day to day practice. The Commission also added a new paragraph (C) to Rule 1.6 which states:
A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
and also added language to paragraphs 18 and 19 of the Comment to Rule 1.6 Confidentiality of Information, the Commission further clarifying the lawyer’s obligations to prevent inadvertent disclosure, stating that a lawyer should balance the sensitivity of the information with the need to provide additional security.
Some state bar ethics committees have opined about the importance of properly disposing of electronic devices so as to ensure that client confidences will not fall into the wrong hands. See, e.g. Alabama State Bar Opinion 2010-2 (2010) (when disposing of electronic devices, lawyers should ensure that confidential information has been removed) and Florida State Bar Opinion 10-2 (2010) .
In 2010, the Ethics 20/20 Commission Working Group on the Implications for New Technologies suggested topics for discussion on precautions lawyers should take when using portable devices. The items included: employing methods for deleting data remotely in the event that a device is lost or stolen; setting standards for use of strong passwords; procedures in place to purge data from devices before replacement; installing safeguards to combat viruses, malware, and spyware; erecting firewalls; ensuring frequent backups of data; updating computer operating systems to ensure that they contain the latest security protections; configuring software and network settings to minimize security risks; encrypting sensitive information, and identifying (and, when appropriate, eliminating) metadata from electronic documents before sending them; and avoiding public “wifi hotspots” when transmitting confidential information.
- From MODEL RULES: ETHICS 20/20 COMMISSION INVITES COMMENTS ON ISSUES RAISED BY GROWING USE OF INTERNET, 26 LMPC 586, 2010 WL 3759955 (L.M.P.C
In some ways, the current concern about the protection on information stored on personal computing devices is really old wine in new bottles. Over the years, ethics committees and courts of law have articulated similar concerns over the proper disposal of paper files. See, e.g. Disciplinary Counsel v. Shaver, 904 N.E.2d 883 (2009) (lawyer reprimanded for leaving boxes of client files next to dumpster). See AlsoNew Jersey State Bar opinion 692 (2002) (lawyers should be careful when disposing of paper files and that “simply placing them in the trash would not suffice”), New York State Bar Opinion 641 (1993), Oregon Ethics Op. 2005-141 (2005), West Virginia Ethics Op. 2002-01 (2002) and Wisconsin Ethics Op. 98-1.
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