On May 11, 2017, The American Bar Association (ABA) updated its 1999 opinion regarding lawyers’ use of email for communication. Although many state bar associations have issued opinions on electronic communications and the use of cloud computing services, the ABA has now provided clear guidance for lawyers on their ethical responsibilities of competence, confidentiality and communication in an electronic age.
Formal Opinion 477, “Securing Communication of Protected Client Information,” which is considered a professional rule of conduct for attorneys, provides that attorneys must take “reasonable measures” to keep client information safe from cyber threats. This means that lawyers must implement basic and reasonable electronic security methods in communicating via email.
The text of the Preamble, which is the crux of the opinion, states:
“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.”
The ABA issued a separate guidance document that explains and outlines what “reasonable measures” are, which is helpful in assisting lawyers in determining which communications are higher risk, and when encryption may be appropriate.
Attorneys have ethical obligations to be competent in the representation of clients, which includes staying up to date on the use of technology, understanding the risks around the use of technology, appropriate use of technology in client communications and to keep client communications confidential. This guidance from the ABA, in addition to the guidance provided by state bar associations are helpful and worth a read.