Ethics, Security, and Other Practical Issues

• Author: Dennis Kennedy - Tom Mighell
• Pages: 235-240

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Ethics, Security, and

Other Practical Issues

Collaboration tools take lawyers into uncharted waters in

many ways. In this chapter, we discuss some of the issues

that collaboration tools raise in areas of particular concern to

lawyers: ethics, confidentiality, and privilege in the practice of

law. Even ten years on from the first edition of this book, law-

yers are still relative newcomers to using collaboration tools,

so we will attempt to reason from analogies with practices and

examples that already exist. If bar regulators can understand

collaboration tools as evolutionary rather than revolutionary

changes and as extensions of processes lawyers already use

and know well, they may decide that new types of regulation

are not necessary. However, if bar regulators treat these tools

as presenting completely new issues requiring completely dif-

ferent approaches, we all could be in for a wild ride.

Lawyers have not yet systematically addressed the ethi-

cal and related issues raised by the use of email, the Internet,

data storage, and computer technology in general. ABA Formal

Opinion 99-413, which states that unencrypted email between

lawyer and client does not lose its confidential nature, has

been accepted as approving the nonuse of encryption for

routine email. However, Formal Opinion 477, issued in 2017,

recognizes that some circumstances do warrant the use of

“particularly strong protective measures,” including encryp-

tion. Because Formal Opinion 477 is not limited to email but to

all lawyer communications, lawyers would be well-advised to

review it prior to implementing any type of technology, includ-

ing the collaboration tools we mention in this book.

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