August 01, 2017 Top Story

ABA Provides Ethical Advice to Protect Electronic Communication

Lawyers should engage in fact-based assessments to determine what efforts are reasonable

Matthew S. Mulqueen

The ABA Standing Committee on Ethics and Professional Responsibility has issued an opinion providing guidance for securing electronic communication of protected client information. ABA Formal Opinion 477R, "Securing Communication of Protected Client Information," cautions practitioners to undertake reasonable efforts to prevent inadvertent or unauthorized access to information. In some circumstances, attorneys may be required to implement special security measures like encryption.

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Reassessing Communication Standards

Formal Opinion 477R updates Formal Opinion 99-413, "Protecting the Confidentiality of Unencrypted E-Mail," and is based on Model Rules of Professional Conduct 1.1 and 1.6. Model Rule 1.6 mandates that, with limited exceptions, a "lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent" or "the disclosure is impliedly authorized in order to carry out the representation." When a lawyer transmits a communication that includes protected information, "the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients." Model Rule 1.1 similarly requires an attorney to keep abreast of the benefits and risks associated with relevant technology.

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