ABA’s Baby Step Toward Confidentiality
Tuesday, May 16, 2017
Posted by: Mary Mack
The ABA issued an ethical opinion tipping the scales toward using encryption to protect client confidences.
Rather than a bright line, the ABA opted for a fact-based inquiry as to whether encryption is necessary. The opinion lays out the stakes: “Cybersecurity recognizes a post-Opinion 99-413 world where law enforcement discusses hacking and data loss in terms of ‘when’ and not ‘if.’”
The fact-based inquiry includes the following non-exclusive factors to guide lawyers in making a “reasonable efforts” determination:
- “the sensitivity of the information,
- the likelihood of disclosure if additional safeguards are not employed,
- the cost of employing additional safeguards,
- the difficulty of implementing the safeguards, and
- the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).”
The ethics opinion also raises the possibility that, depending on the threat assessment, some things should not be reduced to electronic data, encouraging attorneys to think about “whether certain data should ever be stored in an unencrypted environment, or electronically transmitted at all.”
Bob Ambrogi points out that confidentiality was covered during the technology competence update to the ABA Model Rules.
“The opinion relies heavily on two 2012 changes to the Model Rules. I’ve written frequently here about the duty of technology competence and I’ve been maintaining a tally of the states that have adopted the duty. This opinion expressly refers to that duty as one of the reasons for issuing an update to its 1999 opinion on email communications.
It also references the 2012 change to Rule 1.6 on confidentiality, which added a new duty in paragraph (c): “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.”
Download the ethics opinion here.
Read Jim Calloway’s take here.
Read Bob Ambrogi’s overview here.