ANNUAL ETHICS CLETECHNOLOGY ISSUES

Kevin O’SheaTrevor Brown

Today’s Tech Topics

• Client confidentiality and security with electronic communications.

• Social media and text communications with clients.

• Public Wi-Fi risks.• Mimecast protections.• Secure file transfers: a reminder.

ABA 477R: Overview

• The ABA Formal Ethics Opinion 477R.• Client confidentiality and security when dealing

with electronic communications. • Lawyer’s obligation to use reasonable efforts to ensure

client confidentiality and security when dealing with electronic communications.

ABA 477R: Rules of Professional Conduct

• ABA Model Rule 1.1 (competency), Comment 8– “To maintain the requisite knowledge and skill, a lawyer should

keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology...”

• New Hampshire Ethics Committee Comment to Rule 1.1– “Realistically, a lawyer should keep reasonably abreast of readily

determinable benefits and risks associated with applications of technology used by the lawyer, and benefits and risks of technology lawyers similarly situated are using.”

ABA 477R: Impact

• Reasonable efforts in utilizing technology while also keeping client information secure involves balancing: (1) The sensitivity of the information; (2) The likelihood of disclosure if additional safeguards are

not employed;(3) The cost of employing additional safeguards; (4) The difficulty of implementing the safeguards; and (5) The extent to which the safeguards adversely affect the

lawyer’s ability to represent clients.

ABA 477R: Solution

• Generally, unencrypted email can be used for most communications with clients.

• “[H]ighly sensitive confidential client information” may require a lawyer to inform their clients about inherent risks to electronic transmissions.

• Examples:– medical records, – student records, – certain financial transactions, or– other areas of the law subject to regulatory oversight.

ABA 477R: Solution

• FEO 477R explicitly states that: “the lawyer and client should discuss what levels of security will be necessary for each electronic communication about client matters.”

• Informing clients in the initial engagement letter of the need to discuss security concerns related to electronic communications would likely comport with this requirement.

Client Engagement Letters

Confidentiality of Email Communications– My staff and I may communicate with you by email. – In certain circumstances email is not necessarily secure and that information

sent over the internet may, at times, be read by others (if you use a public computer of a computer owned by another).

– Alternatively, certain kinds of email providers, such as Gmail, use an algorithm to scan for words or word patterns.

– Based on the specific nature of your legal needs, if my staff and I communicate personal or sensitive information to you, we will make use of technology such as secure encrypted email, and/or our Accellion file delivery system.

– If you wish to communicate secure information to me electronically, please contact me or my assistant in advance, and we can provide you with secure options.

– Should you wish to limit your communications to avoid email altogether, please let me know.

Social Media & Text Messaging with Clients

• While convenient, ethical issues can arise when clients and attorneys communicate through social media and text messaging .

• Specifically, a lack of professionalism or informality can arise, potentially putting attorneys in danger of violating the rules of professional conduct as they relate to competence, diligence, and communication.

Social Media & Texting: State of Nebraska v. Dustin A. Garrison, 297 Neb. 550 (2017).

• Nebraska attorney found in violation of the Nebraska Rules of Professional Conduct related to competence, diligence, and communications.

• Attorney was accused of failing to adequately answer his client’s questions, and failing to adequately explain the status of his client’s lawsuit through Facebook communications.

Social Media & Texting: State of Nebraska v. Dustin A. Garrison, 297 Neb. 550 (2017).

• The attorney answered his client’s questions via Facebook by stating: – “relax”– “I will take care of it”– “I will explain later”– “we are fine”– “we won” – “I can’t explain the whole process”

Client Engagement Letters

• There may be value in having a clause in the standard client engagement letter regarding communications over social media and text messaging.

• By putting clients on notice that these forms of communication are not preferred, there is a stronger likelihood that such mediums can be avoided for client communications.

Client Engagement Letters

Other Forms of Electronic Communication.• To the greatest extent possible, I will avoid

communicating with you via social media platforms or through text messaging/SMS.

• Although these mediums are convenient, they are not necessarily secure, nor do they allow me to give you an appropriate level of explanation of legal issues.

• I will respond to most, if not all social media communications by email, and would encourage you to use email for all of your electronic communications with me.

Client Engagement Letters

• NB: Not all communication through social media—particularly text messaging—can be avoided, especially when it comes to routine or ministerial communications with long term clients, such as:– “What time is your flight getting in?” – “I’m at the courthouse, meet you in front of

courtroom 6.”– “I’ll call you when I get out of this ethics CLE.”

Public Wi-Fi

Public Wi-Fi

• Risks of Public Wi-Fi– No authentication required to establish a secure

connection.– Hackers can position themselves between you and the

connection point; instead of talking directly with the hotspot, you’re sending information to the hacker, who then relays it on.

– Hackers can also use an unsecured Wi-Fi connection to distribute malware.

Public Wi-Fi: Simple Precautions

• Simple precautions can keep your information safe:– Use a VPN

• A Virtual Private Network (VPN) connection encrypts all data sent through an unsecured connection.

• Citrix and Good are forms of VPNs.– Firewalls

• Sulloway laptops activate a firewall when connecting to the internet via a WiFi connection.

– Turn Off Sharing• Use the system preferences of Control Panel to limit private

information sent in public settings.

Mimecast

• Mimecast is a vendor that provides Sulloway with internet security solutions including:– URL Filtering– Sandboxing (Rolling out in Summer 2017)– URL Protection (Rolling out in Summer 2017)

URL Protection

Secure File Transfers: A Reminder

• Dropbox– The entry level, or “free”, version of Dropbox probably does

not comport with the standards articulated in NH Bar Ethics Committee Advisory Opinion #2012-13/4 .

– Using Dropbox—under certain circumstances— may also waive privilege.

Secure File Transfers: A Reminder

• Accellion– Sulloway’s secure file transfer system comports with the

standards articulated in NH Bar Ethics Committee Advisory Opinion #2012-13/4 .

– Accellion also allows large files to be transferred an avoid attachment limits on outgoing and incoming email servers.

Secure File Transfers: A Reminder

Two ways to transfer files securely with Accellion

• Sulloway users can send emails to recipients with a link.

• Sulloway users can set up “workspaces” within the Sulloway Accellion system to allow clients and/or opposing counsel to upload or download documents.

Secure File Transfers: A Reminder

• https://share.sulloway.com

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