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Safeguarding Client Data: An Attorney's Duty to Provide 'Reasonable' Security
Confidential data in computers and information systems, including those used by attorneys and law firms, faces greater security threats today than ever before. They take a variety of forms, ranging from email phishing scams and social engineering attacks to sophisticated technical exploits resulting in long-term intrusions into law firm networks. They also include lost or stolen laptops, tablets, smartphones and USB drives, as well as inside threats — malicious, untrained, inattentive, and even bored personnel. These threats are a particular concern to attorneys because of their ethical duties of competence and confidentiality.
Effective cybersecurity requires an ongoing, risk-based, comprehensive process that addresses people, policies and procedures, and technology, including training. Effective security also requires an understanding that security is everyone's responsibility and constant security awareness by all users of technology.
Duty to Safeguard
Attorneys have ethical and common law duties to take competent and reasonable measures to safeguard information relating to clients and also often have contractual and regulatory duties to protect confidential information.
Ethics Rules
Several ethics rules in the ABA Model Rules of Professional Conduct and state Rules of Professional Conduct have particular application to protection of client information, including competence (Rule 1.1), communication (Rule 1.4), confidentiality of information (Rule 1.6) and supervision (Rules 5.1, 5.2 and 5.3).
Model Rule 1.1. Competence covers the general duty of competence. It provides that “a lawyer shall provide competent representation to a client.” In 2012, accepting the recommendations of the ABA Commission on Ethics 20/20, the ABA amended the Comment to Rule 1.1 to make explicit that competence includes keeping abreast of “the benefits and risks associated with relevant technology.” Pennsylvania has adopted this addition.
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