December 2012 Bar Bulletin
On the Go: Mobile Devices, Security and Ethics
By Colin Folawn and Christopher Howard
We all love our new toys. These new gadgets make our life, and work, easier. But do you know if you competently preserve the confidentiality of client information when you use your iPad for work? Do you know what your device's security features and limitations are?
The Rules of Professional Conduct require attorney competence when using technology for client work. So before you buy your next shiny piece of mobile technology for your law practice, do your research.
Mobile devices help us communicate more promptly with our clients and reasonably consult with them about the means for accomplishing their objectives, as required by RPC 1.4. Indeed, these devices appear to help create client expectations of nearly instantaneous response times 24/7. Increasingly, clients are expecting us to use these tools.
But we also must use technology in a way that safeguards our clients' right of confidentiality under RPC 1.6. Typically, a lawyer's duties of competence and diligence are thought of as relating to substantive knowledge, preparation and work. Advisory opinions from many jurisdictions show us that these duties apply to technology use as well.
Lawyers must act competently to safeguard information relating to the representation of a client.1 Lawyers must make every effort practicable to avoid unnecessary disclosure.2 More specifically, "When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients."3
A lawyer should not use mobile technology if the lawyer does not know how to use it safely. There are at least two key areas that every lawyer should be aware of: lost devices and wireless networks.
Lost or Stolen Devices
Have a plan in place in the event that a wireless device is lost or stolen. Learn about your device's available security features. Can it be locked with a password? Does it permit you to use encryption when necessary?
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