Is Email Encryption the New Reasonable Standard? The ABA Opines

The ever-present threat to data security  in an increasingly digitized legal profession has redefined the  “reasonable efforts” standard for lawyers who handle client information. Nicole Black over at Above the Law offers a good summary of the recently released American Bar Association (ABA)  Formal Opinion 477, which addresses a need for lawyers to increase the security  of electronic communication by using encryption in certain situations to maintain competence and client confidentiality  She also explores New York State Bar Association (NYSBA) updated  Social Media Ethics Guidelines, which acknowledge and address newer state opinions in the realm of social media.

Click on the link below to access Nicole Black’s article from Above the Law and learn more about the potential impact of ABA Formal Opinion 477 and NYSBA’s Social  Media Ethics Guidelines on the legal community.

New Guidelines: ABA On Email And NYSBA On Social Media

Lawyers Reporting Lawyers…Duty to Report in a Government Agency

Recently, the New York State Bar Association Committee on Professional Ethics opined that a government lawyer with knowledge of another government agency lawyer’s ethical violation that questions the lawyer’s fitness to practice law must report the information to a tribunal authorized to investigate the conduct, unless the information is confidential and the agency does not consent to its disclosure.

“Tribunal” is defined by New York Rule 1.0 as “a court, an arbitrator in arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a legal judgment directly affecting a party’s interests in a particular matter.” [Emphasis added.]

If a report to a tribunal or other authority is necessary, the lawyer must determine if the government agency’s ethics office is considered a tribunal or other authority authorized to act upon such violation. If the ethics office is not considered a tribunal or such other authority under these standards, the government lawyer may report initially to the ethics office of the government agency. However, the lawyer may not defer to a decision by the ethics office not to report unless the reporting obligation involves an “arguable question of professional duty” and the decision of the ethics office not to report is a reasonable resolution.

Yet, it’s important to highlight that a mere suspicion of misconduct is not sufficient under Opinion 1120. A lawyer must have knowledge of said misconduct.

To read the opinion click here.

In the Cloud? The Florida Bar Publishes Guidelines for Selecting a Cloud Service Provider

In the Cloud? The Florida Bar Publishes Guidelines for Selecting a Cloud Service Provider

The Florida Bar’s Technology Committee in collaboration with The Florida Bar’s Practice Resource Institute have published both a quick start guide to cloud computing and  more comprehensive due diligence guidelines to assist lawyers in selecting a cloud service provider.

The Florida Bar News reports:

“Two things are happening more than ever right now: Lawyers are using the cloud to store sensitive information; and lawyers are under attack from cyber criminals looking to steal sensitive information,” said Tech Committee Chair Al Saikali, who also chairs the Privacy and Data Security Practice area at Shook, Hardy & Bacon. “It was therefore important to develop a document that teaches lawyers about the cybersecurity and legal issues associated with the storage of cloud service providers.”

To read the article that contains links to the new guidelines click here

When Must a Lawyer Plotting a Lateral Move Obtain a Client’s Informed Consent?

1. Conflict of Interest and Informed Consent

To avoid a conflict of interest, a lawyer needs to be informed client consent to engage in substantive job negotiations with a law firm that is adverse to the client. Likewise, hiring firms must avoid serious job talks with opposing counsel unless its own client consents. See North Carolina State Bar Ethics Comm., Formal Op. 20163, 1/27/17.

North Carolina Rule of Professional Conduct 1.7 forbids a lawyer from representing a client if the lawyer’s own interests may materially limit the client’s representation unless the lawyer reasonably believes he or she can provide competent and diligent representation and the client gives informed consent, confirmed in writing. N.C. Rules of Prof’l Conduct, Rule 1.7(b)(2) (2003). This type of conflict may arise when a lawyer has discussions about possible employment with a client’s opponent or a law firm representing the opponent. N.C. Rules of Prof’l Conduct, Rule 1.7, cmt. 10.

2. Substantive Discussion or Negotiation

While the exact point at which a lawyer’s own interest may materially limit his representation of a client may vary, the ethics committee advised substantive discussions and negotiations materially limit the lawyer’s representation of a client. Similarly, The Restatement (Third) of the Law Governing Lawyers advises that once the discussion of employment has become concrete and the interest is mutual, the lawyer must promptly inform the client. Restatement (Third) of the Law Governing Lawyers: A Lawyer’s Personal Interest Affecting the Representation of a Client, § 125, cmt. d. (2000).

The ethics committee relied on the ABA definition of “substantive discussion”, which “entails a communication between the job-seeking lawyer and the hiring law firm about the job-seeking lawyer’s skills, experience, and the ability to bring clients to the firm; and the terms of association.” ABA Formal Ethics Op. 96-400 (1996). To find a “substantive discussion,” the ethics committee opined that there must be a discussion or negotiation that is substantive. See North Carolina State Bar Ethics Comm., Formal Op. 20163, 1/27/17.

The committee further provided examples as to what constitutes a “discussion” and what is “substantive.” “Sending a resume blind to a potential employer is not a ‘discussion.” Id. “Speaking generally with a colleague at a social event about employment opportunities is not ‘substantive.’” Id.

To read the full opinion, click here.

It’s Like Leaving the File on a “Bench in the Public Square”: Unsecured Storage Results in Waiver of Attorney-Client Privilege

Recently, a Virginia federal magistrate judge held that a party waived its attorney-client privilege when it posted unsecured, confidential information to a file-sharing website. Citing public policy reasons, the court ruled that uploading a file that was not password protected and available to anyone on the Internet to view is akin to leaving the file on a “bench in the public square.”

The dispute arose between an insurance company and it is insured when an employee of the insurance company placed the entire case file on Box, Inc., a popular file storage website.  The judge referenced the rapidly evolving technology used in sharing information and directed that a company that chooses to use a new technology is responsible for ensuring that its employees understand how the technology works, and whether the technology allows unwanted access by others to its confidential information.

To read the full opinion, click here.