The ABA Ethics 2020 Commission today released several issues papers, including one on lawyer use of technology and client confidentiality. I’ve just skimmed the proposal very quickly, but preliminarily, I was excited to see that the Commission adopted my proposed risk assessment approach to confidentiality. The proposed rule states that lawyers must understand the risks of technology – a reasonable, if not terrifying prospect for those who don’t use technology at all. However, rather than mandate a bright, one-size fits all line for all practices, the Commission adopts an approach that I endorsed in my comments, allowing lawyers to select appropriate measures to safeguard technology based on a consideration of factors including “the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, and the cost of employing additional safeguards.” In addition, the proposed rule states that:
Whether a lawyer may be required to take additional steps to safeguard a client’s information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules.
I proposed this approach, fearing that any efforts by the bar to override state or federal law would be met with backlash. Further, I don’t think that it’s appropriate for lawyers who run afoul of a federal or state law to have to go through a disciplinary action on top of whatever other penalties they will face.
I was one of only a handful of lawyers (and indeed, the only one who isn’t a real techie) to submit these comments – and even though I spent a lot of time on them, I’m surprised (albeit pleasantly) that they were taken into account since I’m really just a novice when it comes to ethics and tech. I give credit to the Ethics 2020 Commission of staying true to their word of listening to outside input, but equally so to the power of blogging which has given a lowly solo like me a chance to self-publish myself into credibility and barge into a decision-making process once reserved to the upper echelons of the profession. How cool is that?