Your Duty of Confidentiality May Be Expanding: What You Can Do To Protect Yourself

Your Duty of Confidentiality May Be Expanding: What You Can Do To Protect Yourself

by: Tracy Cermak

In the past, the duty of confidentially only required a lawyer to not reveal client confidences, unless otherwise permitted. Recently, the Commission on Ethics 20/20 proposed an amendment to the Model Rules and the ABA adopted the amendment in August 2012. The amendment adds subsection (c) to Rule 1.6 and broadens the scope of Model Rule 1.6. Model Rule 1.6(c) states, “a lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” The amended rule obligates a lawyer to act affirmatively and reasonably to prevent a revelation of confidential information. There are many precautions lawyers can and should take to protect themselves and their clients from the ethical and practical traps electronic communication can set. Lawyers should use any means available to provide security and further the argument that they have made reasonable efforts to protect confidentiality.

The use of passwords can further the argument that a lawyer made a reasonable effort to prevent the disclosure of client information. Password protection comes in many forms. Encryption programs permit email messages to be encrypted and transmitted in code so they can only read by a person in possession of the password that decodes of the message. Encrypted email also has its limits. For encryption to work both the sender and receiver must use compatible encryption programs, the email is only as secure as the passwords used to decode the message, and there is no way for the identity of the sender and receiver to remain confidential. The lawyer and client may also decide to utilize email providers that provide password protection to access to emails. Securing the origination and termination point of the email by locking both computers with a password during times of inactivity may also prevent others from reading confidential emails and bolsters the argument that the lawyer took steps to prevent disclosure.

Gaining a client’s informed consent to use electronic communication and educating a client on the waiver of attorney-client privilege is a process that is mandated in some states and suggested by others. This proactive communication with a client may clear up problems before they occur. It may be wise for a lawyer to obtain such consent from the client in writing before using email.

Disclaimers in the subject line of the email and in the email itself may also bolster the argument that the lawyer took reasonable steps to prevent disclosure of the client’s information. Placing a cautionary statement lends credibility to an argument that the communicator does not wish to waive attorney-client privilege. The following statement is an example of a cautionary statement:

This email transmission contains information that is intended to be privileged and confidential. It is intended only for the addressee. If you received this email in error, please do not read, copy or disseminate it in any manner. Please reply to the message immediately by informing the sender that the message was misdirected. After replaying, please erase if from your computer system. Your assistance in correcting this error is appreciated.

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