Client Data in the Age of Digital Technologies and Cyber Warfare

With developing and aggressive governmental policies to combat cyber warfare alongside ethical and legal obligations to protect clients' technical, private and privileged information, lawyers must be competent and reasonable in their practice. For example, among the last things you need is an inadvertent electronic disclosure of confidential client data such as a customer list when working on a 363 sale. Your technical competence and the reasonableness of your efforts to thwart such a leak could lead to questioning by a governmental agency as well as to suffering punitive consequences.

What was seen to be reasonable at any given point is likely to change quickly with a new ruling or the enactment of a law. In fact, while technological competency was addressed back in 2012 with an amendment to MRPC 1.1, Florida, as of Jan. 1, 2017, was the first state to require technology related CLE courses. In adopting the bar association's proposal for mandatory technology CLEs, the Florida Supreme Court opined that competent representation may involve a lawyer's association with, or retention of, a non-lawyer adviser with established technological competence in the relevant field. Additionally, the court said, in order to maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including an understanding of the risks and benefits associated with the use of technology.