Are Your Client Communications Secure? What You Need to Know About the New ABA Opinion.
The American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 477 on May 11, 2017 advising lawyers to ensure the security of their client communications and to exercise reasonable efforts when using technology in communicating about client matters.
These reasonable efforts are not a hard and fast rule, but are contingent upon the following factors:
• the sensitivity of the information
• the likelihood of disclosure if additional safeguards are not employed,
• the cost of employing additional safeguards,
• the difficulty of implementing the safeguards, and
• the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g. by making a device or important piece of software excessively difficult to use)
The opinion continues with “cyber-threats and the proliferation of electronic communications devices have changed the landscape and it is not always reliable to rely on the use of unencrypted email…Therefore, lawyers must, on a case-by-case basis, constantly analyze how they communicate electronically about client matters, applying the [above] factors to determine what effort is reasonable.”
The opinion also includes seven considerations for lawyers regarding client communication:
Understand the Nature of the Threat
Understand How Client Confidential Information is Transmitted and Where it is Stored
Understand and Use Reasonable Electronic Security Measures
Determine How Electronic Communications About Clients Matters Should Be Protected
Label Client Confidential Information
Train Lawyers and Nonlawyer Assistants in Technology and Information Security
Conduct Due Diligence on Vendors Providing Communications Technology
So how should a lawyer best navigate the new Model Rules of Professional Conduct? This is a highly important opinion that attorneys must adhere to, especially in today’s environment, but is it realistic that attorneys review the security of their communications on a case-by-case basis?
Many solo and small law firms are taking a holistic approach to solve for security issues by adopting secure, cloud-based legal practice management software. The benefit of cloud-based practice management in relation to the new model rule discussed here is that many provide a client portal for securely communicating with clients. This means attorneys can securely communicate with clients on every matter, eliminating the need to evaluate their communication method on a case-by-case basis. A client portal allows an attorney to easily and securely share documents and forms and communicate with clients. And, within the portal clients are able to review, complete and leave comments on documents or forms, upload new documents and communicate with the attorney on anything related to the matter – all from one central, secure environment.
Cloud-based practice management solutions provide a comprehensive security solution by allowing solo and small law firms to piggy-back on the data security measures of the practice management provider, rather than trying to manage the safeguards and technical aspects of data security in-house. This ensures that all client and matter information is also stored in a central, secure cloud environment to minimize the risk of any security threat – not only those that impact client communications.
As advised in the model rule attorneys must “Conduct Due Diligence on Vendors Providing Communications Technology”. If you are interested in exploring a cloud-based practice management solution you should know that not all cloud providers are created equally when it comes to security.
Use this Cloud Security Checklist to understand the 5 most important security topics to consider when evaluating cloud providers to safeguard your law firm data and client communications.
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