Lawyers aren’t known as the most forward-thinking, technologically savvy group. This shouldn’t come as a surprise, since a key principle of the American judicial system is the concept of precedent; making decisions now that are bound by decisions of the past. Attorneys are notoriously hesitant to adopt change. But in today’s constantly changing legal market, it’s not good enough to stick our heads in the sand and ignore the benefits that technology can add to the attorney-client relationship.
The American Bar Association publishes the Model Rules of Professional Conduct, which acts as guidance for the ethical rules adopted by each state. Model Rule 1.1 requires lawyers to provide competent representation to a client, which includes understanding the benefits and risks associated with technology. Technology is also referenced in Model Rule 1.6(c) which requires a lawyer to make “reasonable efforts” to prevent the inadvertent or unauthorized disclosure of or access to information relating to the representation. The Pennsylvania Rules of Professional Conduct have implemented both concepts .
Occasionally, the ABA publishes ethics opinions that provide additional clarity to the principles in the Model Rules. Earlier this month, the ABA published Formal Opinion 477 on Securing Communication of Protected Client Information. After discussing the obligations of attorneys for confidential electronic communication, Formal Opinion 477 concludes:
A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. However, a lawyer may be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.
At Russell, Krafft & Gruber, we strive to remain on the cutting edge of the legal profession by continually evaluating and adopting technologies that benefit our clients. We have implemented many safeguards to protect sensitive client information, such as:
- Taking the time to understand our clients’ comfort level with technology so we can efficiently and securely communicate during the matter.
- Utilizing a combination of encryption software, policies and procedures to ensure that we appropriately protect sensitive personal information.
- Being mindful of whether other individuals have access to an email account, such as if the email address is utilized or accessible by multiple family members or if the email address is a business address.
- Staying abreast of the latest hacks and scams that target law firms and their clients.
It’s great to see the Model Rules continue to evolve to recognize the necessity of technology and appropriate security protections for clients. But regardless of the minimums set by the Model Rules, we will continue to work above and beyond those standards to utilize new and improved technology that best serves our clients.