What lawyers need to know about ethical responsibilities and technology

We have posted before on safety in technology, and we will continue to do so, as data security is an essential obligation of all attorneys practicing law today. Consider this:

• The Fragomen law firm, the largest immigration firm in the United States, recently disclosed a data breach that exposed the personal information of their clients, including full name, mailing address, date of birth, email address, phone number, social security number, passport numbers, and other identifiers.

• Quoted in the American Bar Association Journal, Professor Jan Jacobowitz of the University of Miami School of Law warns, “On the technology front … some lawyers remain relatively in the dark and risk breaching client confidentiality not only from a traditional cybersecurity breach but also from other ‘smaller’ misuses of technology,” citing use of public wi-fi and “pocket dialing,” as two common examples of the latter.

• The Florida Bar recently highlighted that lawyers are attractive cybercrime targets, identified a number of risk areas, and reported that the typical law firm data breach results in $300-500,000 in out-of-pocket expenses. 

• Thirty-five states have adopted the amendments to ABA Model Rule 1.1, Comment 8, which provide, “a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.”

What are my duties?

• Model Rule 1.1 requires lawyers to keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.
• Model Rule 1.4 requires appropriate communications with clients. Communications also applies to attorneys’ use of technology. 
• Model Rule 1.6 requires protection of “information relating to the representation of a client,” and is not limited to confidential communications and privileged information.
• Model Rule 5.1 requires partners, managers, and supervisory lawyers to ensure their teams conform to the ethics rules.
• Model Rule 5.3 requires attorneys to monitor nonlawyer assistants and “assistance,” including outsourced services ranging from copying services to cloud-based law firm management software. Due diligence and contract protections are therefore needed. 
• Reasonable –not perfect or fool-proof security — is required.

How do I comply?

Increasingly, firms are turning to cybersecurity to fulfill their ethical obligations, protect their clients, and enhance their financial performance. Cybersecurity is a process to protect the confidentiality, integrity, and availability of information. 

Firm and client information is stored in the “cloud,” a network of servers maintained by an outside provider that can be accessed through the internet. So, instead of one server in your office, your data is duplicated and housed on many servers in various geographical locations.

Storing and accessing massive amounts of information a law firm manages on the cloud is more secure and less expensive to maintain than firm-specific servers and elaborate filing, storage and retrieval systems. 

Here is how cloud-based legal software can help you meet your ethical obligations:

• Model Rule 1.1 – “keep abreast of relevant technology.” Smokeball’s award-winning support team is in regular contact with clients about developments and enhancements to the system. Our team also regularly creates resources for law firms to help our clients succeed. 
• Model Rule 1.4 – “appropriate communications with clients.” Smokeball’s Communicate feature automates the job of keeping clients informed while saving time and increasing client satisfaction. 
• Model Rule 1.6 – “protection of all information.” As noted above, the system does not have to be perfect, but according to Alex Stamos, former chief information security officer at Yahoo and Facebook, “for most organizations, you are ten times more secure with your data stored and defended by a major cloud service provider than if you’d try to protect it yourself.”
• Model Rule 5.1 – “managers ensure their teams conform to ethics rules.” Smokeball’s Activity Intelligence feature lets you monitor every time keeper in the firm, wherever they are working, and can help you identify potential problems.
• Model Rule 5.3 – “monitor assistants and assistance.” The Activity Intelligence feature helps you monitor your assistants. You can fulfill your due diligence obligations by joining others in choosing Smokeball’s proven and award-winning law firm management software.

If you would like to increase your comfort that you are fulfilling your ethical obligations, while increasing your firm’s financial performance, contact us for additional information or a personalized demonstration.