Posts tagged: legal ethics

  • Sunday
  • May 22
  • 2011

The ABA at the intersection of cloud computing and legal ethics

Law Technology News has posted an interesting, albeit brief summary of where things are at the intersection of cloud computing and legal ethics, Attorneys in the Cloud May Get ABA Wake-Up Call With Proposed Rules. The article was prompted by a recent subset of draft reports and resolutions by the influential ABA Commission on Ethics 20/20, which has a mandate to recommend changes to the ABA Model Rules of Professional Conduct reflecting changes in how attorneys need to — or even must in response to client demand — use modern technology in their practice of law.

The recommendations hope to address a seeming tsunami of ethical challenges presented by the use of outsourcing by attorneys, as well as broader confidentiality issues arising from the use of technology.

Needless to say, this national discussion at the ABA level has heavily influenced the California State Bar, which has already issued its own, largely conforming Formal Ethics Opinion No. 2010-179. A recent LSNC training on these very issues quite aptly referred to these legal ethics requirements, in a nutshell, as the ethical obligation to pay attention to what you’re doing.

  • Monday
  • April 25
  • 2011

The ethical obligation to pay attention

Last week we did an in-house webinar for all staff—not just attorneys and paralegals—about practical, ethical approaches to use of cloud-based applications and mobile devices that involve the storage or transfer of client-related information, in whatever form. The webinar was driven by the demands of the recent California State Bar Formal Ethics Opinion No. 2010-179. (A few months ago, I posted a short summary of the ethics opinion.

Slide decks never do justice to being there, a truism reinforced by my personal presentation style favoring slides that are as visually simple as possible and with as few bullets as possible, and optimally with no bullets at all. (Hey, but that’s me.) That said, you can download an edited version of our Technology and Client Confidentiality slide deck . We have also posted at SlideShare a 38-slide, step-by-step guide to How to Encrypt Your Laptop with TrueCrypt, by Ed Lachgar, part of the LSNC IT team.

A few presentation notes worth observing: The heart of the presentation was given by Bob Stalker, the managing attorney of the LSNC Vallejo Office. Of note is that Bob, at the time the ethics opinion was drafted and vetted, was a member of the California State Bar Ethics Committee and so he brought particularly helpful insights to an understanding of the State Bar’s approach to these issues. Bob covered the “attorney practice” aspects of the ethics opinion. Mark Sawyer, IT Manager for LSNC, covered the “practical technology” issues, with refreshingly clear explanations of how to evaluate and assure a reasonable level of security, to comply with the standards in the ethics opinion. Me? As you would imagine, compared to the other two presenters I was just the resident bloviator. But I do think I created a solid slide deck.

Bob Stalker is the one who came up with the summation in the next to last slide: “Pay attention to what you’re doing.”

  • Friday
  • December 17
  • 2010

California publishes formal ethics opinion on technology and client confidentiality

After a period of extended public review and comment, the California State Bar has published Formal Opinion No. 2010-179, addressing this question:

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.

  • Thursday
  • December 3
  • 2009

Confidentiality and technology: California’s proposed ethics opinion

Proposed Formal Opinion Interim No. 08-0002 (Confidentiality and Technology) has been flying under the radar for most California attorneys, but for the first time the technology chicken is coming home to roost in the California Bar’s first proposed ethics opinion at the juncture of client confidentiality and technology. You can download the seven-page proposed opinion. The proposed opinion remains open to public comment until January 4, 2010.

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.”