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Worried About Complying with ABA Opinion 483 on Cybersecurity? Fear No More
In response to the omnipresent threat of cyberattacks, on Oct. 16, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 483. The Opinion addresses the obligations imposed upon lawyers to safeguard their clients' data and to notify them of a data breach. While the ABA meticulously listed the six Model Rules which support its conclusions that lawyers have a duty to become proficient in cybersecurity, it did not identify how to achieve compliance. This article bridges that gap.
Cybersecurity Obligations Under Formal Opinion 483
The Opinion relies upon ABA Model Rules of Professional Conduct Rule 1.1 (competence), Rule 1.4 (communications), Rule 1.6 (confidentiality of information), Rule 1.15 (safekeeping property), Rule 5.1 (responsibilities of a partner or supervisory lawyer), and Rule 5.3 (responsibilities regarding nonlawyer assistance) to conclude that a lawyer must take reasonable steps to monitor for a data breach, to stop it when it happens, to restore the systems after a breach, to determine what occurred, and to provide notice of the breach if it materially affects the lawyer's ability to represent the client.
When a breach of protected client information is either suspected or detected, Model Rule 1.1 requires the lawyer act reasonably and promptly to stop the breach and mitigate damage resulting from the breach.
Under Model Rule 1.4, lawyers have a duty to notify clients of a data breach in sufficient detail to keep clients “reasonably informed” and with an explanation “to the extent necessary to permit the client to make informed decisions regarding the representation.”
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