June 06, 2017

ABA issues guidance on electronic transmission of protected client information

CHICAGO, May 11, 2017 — The American Bar Association Standing Committee on Ethics and Professional Responsibility has issued Formal Opinion 477 that expands guidance to lawyers on what steps to take to enhance confidentiality in the transfer of sensitive information by electronic means.

The new opinion builds upon Formal Opinion 99-413 issued in 1999 that discusses protecting the confidentiality of unencrypted email. It also ties in amendments made to ABA Model Rule 1.6 and the official Comments of Rule 1.1 adopted since 1999.

Formal Opinion 477 notes that in the years since Opinion 99-413, when multiple methods of communicatons were prevalent, today “many lawyers primarily use electronic means to communicate and exchange documents with clients, other lawyers and even with persons who are assisting in delivering legal services to clients.”

“Each device and each storage location offer an opportunity for the inadvertent or unauthorized disclosure of information relating to the representation, and thus implicate a lawyers’ ethical duties,”
FO 477 said.

The guidance covers many factors, from understanding the nature of the threat to sensititve information to taking a pro-active role in ensuring electronic communications are protected to ensuring that lawyer and nonlawyer colleagues are trained in technology and information security. In addition, the guidance recommends that the lawyer fully inform the client of the “risks involved” in the transmission of sensitive information.

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to advise lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior.

Formal Opinion 477 and previous ABA ethics opinions are available on the ABA Center for Professional Responsibility website under “Latest Ethics Opinions.”

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