Ethics, Security, and Other Practical Issues

AuthorDennis Kennedy - Tom Mighell
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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