January 2014 Bar Bulletin
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January 2014 Bar Bulletin

Confidentiality: Concerns for Lawyers in a Modern World

By Brian Krikorian

 

I hate to date myself, but when I was a young lawyer practicing in Los Angeles, I remember when my law firm purchased a contraption known as a "fax machine." I was wowed by the fact you could instantly send a document over the phone lines!

Just a couple years earlier, I had clerked for a small, personal injury firm where we typed up discovery responses using carbon paper (do they even sell that anymore?). I bet some people today don't even know what the genus of the carbon copy "cc" notation is.

Today, technology increases at an exponentially lightning pace. Just 10 years ago we were barely getting used to having a website or email; now almost everything is geared toward the Internet, the fax machine is almost obsolete, and "scanning and email" from our phones have taken its place. But in our fast-paced lifestyle, attorneys should not forget that despite the convenience of modern technology, the Rules of Professional Conduct still control what we do.

Of greatest concern is the easiness within which we can forget the basic protections of one of the bedrock tenets of being a lawyer - preserving client confidentiality and secrets. RPC 1.6, which was last amended in 2006, states, "A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b)." Paragraph (b) provides specific exceptions to this prohibition; however, if they do not apply, as a rule, a lawyer has a fiduciary and ethical duty to preserve his clients' "confidences" and "secrets."1

While the most classic examples of "confidences" and "secrets" may well be easily recognized by lawyers, we can sometimes get caught up in the tidal wave of technology and forget this basic rule. For example, it is very common now (and something I have moved toward) to use "cloud" storage of documents and material. Services such as Dropbox, Skydrive, Google and iCloud provide access to your documents anytime and anywhere.

This is a boon for the technologically savvy lawyer (and helps alleviate those chiropractor bills), who can now instantly access file documents from his or her phone, tablet or laptop (and even on a computer at the opposing counsel's office), without lugging briefcases full of documents and files. And therein lies the rub: Despite this ease of access, we are still charged with being the proverbial gatekeeper of our clients' "confidences" and "secrets."

Comment [16] to RPC 1.6 states:

A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision. See Rules 1.1, 5.1 and 5.3.


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