Ongoing technological developments present attorneys with significant challenges in the field of information privacy and security. One of these developments comes in the seemingly innocuous package of “free wifi.” But that Internet connection won’t seem so free if it comes with a State Bar probe for ethics violations.
Here’s a scenario: Client asked Attorney for advice. Attorney takes her laptop computer to a cafe and accesses a public wireless Internet connection. Attorney does legal research on the matter and emails Client.
Sound familiar? Maybe you’ve done it? Well, in its Formal Opinion No. 2010-179, the State Bar’s Standing Committee on Professional Responsibility and Conduct says that the Attorney in the cafe may have violated her duties of confidentiality and competence to the Client unless she took appropriate precautions, such as using a combination of file encryption, encryption of wireless transmissions, and a personal firewall.
Because these precautions are not practical for most attorneys, it’s best to avoid the temptations of free wifi when you are doing legal research and then emailing your client.
As free wifi is just one of many unpredictable issues that will arise with new technologies, the opinion provides a handy 6-factor list for attorneys to consider when they encounter these new issues:
1) the level of security attendant to the use of that technology, including whether reasonable precautions may be taken when using the technology to increase the level of security;
2) the legal ramifications to a third party who intercepts, accesses or exceeds authorized use of the electronic information;
3) the degree of sensitivity of the information;
4) the possible impact on the client of an inadvertent disclosure of privileged or confidential information or work product;
5) the urgency of the situation; and
6) the client’s instructions and circumstances, such as access by others to the client’s devices and communications.
For more on the challenges attorneys face in dealing with new technologies, go to CEB’s book Privacy Compliance and Litigation in California, chap 1. On a related issue, check out CEB’s upcoming program The Legal, Ethical and Privilege Issues of E-mail Use, offered on July 8th in Los Angeles and August 19th in San Francisco, and then available On Demand.
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