Does an attorney violate the duties of confidentiality and competence he or she owes to a client by using technology to transmit or store confidential client information when the technology may be susceptible to unauthorized access by third parties?

To answer that question, the opinion promotes a six-step evaluation process California attorneys should utilize to determine the boundaries of their ethical obligation when relying on newer technologies to handle confidential client information. Among the elements of concern are the level of security being used, the sensitivity of the information, the urgency of using the technology rather than other means for transmission or sharing of the information, and the client’s instructions or circumstances affecting how the technology should be used.

Concerns about client confidentiality are, if anything, on the rise with the increasingly pervasive use among attorneys of smartphones and other mobile devices, and the spreading availability of public Internet access points, well, pretty much everywhere. There’s a lot to chew on in the opinion. A must-read for California attorneys.

Other posts of possible interest...

• Confidentiality and technology: California’s proposed ethics opinion
• The ABA at the intersection of cloud computing and legal ethics
• The ethical obligation to pay attention

On balance, it is an excellent description of how newer technologies impact the duties of competence and client confidentiality. It seems particularly wise in not addressing these issues by taking on particular technologies; rather it provides a sensible approach enabling an attorney to understand what the potential problems are and how they miight be resolved in a practical while ethical manner.

I differ with the opinion on language in the section about “legal ramifications to a third party who intercepts, accesses or exceeds authorized use of the electronic information.” The discussion at page five of the opinion does clear things up in that regard, but the summary point could be clearer. What I think they mean to say is “applicability of civil or criminal laws protecting an expectation of privacy, with consequences to a third party who intercepts, accesses or exceeds authorized use of the electronic information.”

Other posts of possible interest...

• California publishes formal ethics opinion on technology and client confidentiality
• The ABA at the intersection of cloud computing and legal ethics
• The ethical obligation to pay attention
• Pondering your own privacy panic attack