Lawyers don’t get a free pass when it moves toward to data security. In fact, ethical rules enforce a series of obligations on lawyers when they or their firms are subject to a data breach.
In a significant ethics opinion issued last month, Formal Opinion 483, Lawyers’ Obligations After an Electronic Data Breach or Cyber attack, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility delivers a detailed roadmap to a lawyer’s obligations to current and former clients when they learn that they – or their firm – have been the subject of a data breach.
Remarkably, the opinion tip off that a lawyer’s compliance with state or federal data security laws does “not necessarily attain compliance with ethics obligations,” and identifies six ABA Model Rules that might be implicated in the breach of client information.
This opinion follows Formal Opinion 477R, released last year, in which the ABA described a lawyer’s ethical obligation to secure client confidential client data when communicating over the Internet.
The fact that the ABA has delivered two formal views on the topic of data security in such a short time indicates the importance of ethical principles when lawyers are challenged with the disagreeable task of sorting out their own duties in a data breach.
Opinion 483 underscores the fact that law firms, “[a]s custodians of highly sensitive info,” may be “inviting” targets for hackers.
While the opinion is exhaustive, and certainly worthy of a full read, here are key takeout from the opinion’s guidance:
As part of their duty of competence, lawyers have an obligation to take “reasonable steps” to monitor for data breaches. The opinion describes a “data breach” as an incident where “material client confidential information is misappropriated, destroyed, or otherwise compromised, or where a lawyer’s ability to perform the legal services for which the lawyer is hired is significantly reduced by the episode.”
When a breach is identified, a lawyer must act “reasonably and promptly” to halt the breach and lighten damages resulting from the breach. In order to confirm their ability to do this, lawyers should proactively develop incident response plans that will permit them to answer back quickly and suitably to a data security incident.
A lawyer must make practical efforts to assess whether any electronic files were, in fact, accessed and, if so, identify them. This have need of a post-breach investigation where the lawyer collects enough information to determine that the intrusion has been stopped and then – “to the extent possible” – evaluate the data lost or accessed. The lawyer must do so in order to allow for full and accurate revelation to affected clients.
Lawyers must then provide notice to their affected clients of the breach “to the extent reasonably essential to permit the client to make informed decisions concerning the representation.”
While stopping short of requiring attorneys to notify former clients of data breaches, the ABA notes that an attorney should consider contractual arrangements with previous clients, as well as supervisory or constitutional breach notification requirements in determining whether notification is merited, so as to limit liability. In addition, the ABA raise your spirits law firms to adopt a limited document retention schedule that allows them to reduce the amount of information they keep linking to former clients.
The ethical guiding principle set forth in the opinion could apply to any client data that may affect with representation, instead of being expressly limited to only legally protected information such as personally identifiable information (PII) or personal health information (PHI).
The ABA’s opinion is a solemn but realistic reminder that lawyers in usa and law firms, like other professionals and businesses that deal with sensitive information, must keep fit attentiveness when it comes to cybercrime. But at the same time, the ABA says, lawyers are necessary to deal not only with the result of a breach but with all the ethical and legal obligations that may come with it.
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