November 02, 2018

MONTH-IN-BRIEF: Legal Opinions & Ethics

Keith R. Fisher, Christina Houston

Professional Responsibility

ABA Ethics Committee Opinion on Large-scale Disasters

By Keith R. Fisher

Recently, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 482, which deals with ethical obligations in connection with large-scale disasters, including such diverse events as hurricanes, earthquakes, and acts of terrorism. Topics addressed include protecting client information, implementing measures to ensure the lawyer’s ability to remain in contact with clients and financial institutions holding client funds, and attorney advertising in disaster-affected areas. The author dissented in part because of a concern that the opinion was imposing “one size fits all” ethical “obligations” on lawyers regardless of context. The Professional Responsibility Committee is planning a program on this topic, among others, for the spring meeting in Vancouver.

Professional Responsibility

ABA Ethics Committee Opinion on Data Breaches and Cyberattacks

By Keith R. Fisher

The ABA Standing Committee on Ethics and Professional Responsibility has released a formal opinion detailing lawyers’ ethical obligations in connection with data breaches and cyberattacks. The opinion says that lawyers must notify current clients in the event of a data breach and keep them updated on the findings of any investigations into that breach. Lawyers are supposed to monitor the technology they use for data breaches and take steps to “stop” the attack and mitigate damage. While lawyers do not have a free-standing ethical obligation to inform former clients of a data breach, the opinion advises them to check for different requirements under state law and state ethics opinions and to craft written agreements with clients regarding the handling of their confidential information once a client ceases to be a client. The opinion acknowledges that a data breach is not per se an indication that a lawyer has not met the ethical obligation to safeguard client information, provided the lawyer took reasonable steps to prevent the data breach.

Keith Fisher

Principal Consultant and Senior Counsel, National Center for State Courts

An honors graduate of Princeton University and Georgetown University Law Center, Keith Fisher joined the National Center for State Courts in 2015 as Principal Consultant and Senior Counsel for Domestic and International Court Initiatives.  He is an experienced lawyer and law professor and is a nationally known expert on domestic and international financial services regulation and legal and judicial ethics.  Recent speaking engagements on domestic and international  ethics issues include the Center for Judicial Ethics National Judicial College, the International Conference on Court Excellence in Singapore, the Professional Responsibility Training Session for Immigration Judges, an American-Hellenic Chamber of Commerce Symposium on Improving the Greek Court System, the Magistrature de Quebec’s Colloque soulignant les 40 ans du Conseil de la magistrature, the U.N.’s Global Judicial Integrity Network conference on social media in Vienna, and the Konrad Adenauer Stiftung’s conference on judicial ethics and social media..  He also serves on the Board of Editors for UNESCO publications on judicial bioethics.

Christina Houston

Counsel, DLA Piper

Christina’s practice focuses on legal opinions, LLCs, partnerships, trusts and corporations and general commercial transactions. Christina is a member of the Partnership and Limited Liability Company Committee of the Corporation Law Section of the Delaware State Bar Association, which is responsible for annually reviewing and updating Delaware’s partnership and LLC statutes. Christina also is actively involved in the Legal Opinions Committee of the American Bar Association Business Law Section, the Committee on LLCs, Partnerships and Unincorporated Business Associations and the Business Law Basics Committee of the Business Law Section of the American Bar Association. She is the current Chair of the Opinion Issues in LLCs Subcommittee. Christina is a member of the TriBar Opinion Committee.