Securing Client Communications
The Innovation in Practice Committee, J.
In May of this year, the ABA released ethics opinion 477 on the use of encryption for attorney-client communications. This is an update of various formal opinions starting with 99-413, which dealt with the confidentiality of email. The new opinion noted that an attorney is not compelled to use encryption with email: “A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access.” ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 477, 1 (May 11, 2017), available at https://www.americanbar.org/content/dam/ aba/administrative/law_national_security/ABA%20Formal%20 Opinion%20477.authcheckdam.pdf. The opinion also stated that the scale for reasonable efforts have changed over the past twenty years and that new standards should be considered: A fact-based analysis means that particularly strong protective measures, like encryption, are warranted in some circumstances. Model Rule 1.4 may require a lawyer to discuss security safeguards with clients. Under certain circumstances, the lawyer may need to obtain informed consent from the client regarding whether to the use enhanced security measures ….
Id. at 5.
In a nutshell, the opinion indicates that encryption tools have reached a point where attorneys should have some understanding about encryption, that it should be available for use, and that attorneys be able to determine when and how encryption should be used. This “case by case” evaluation can be a serious challenge. Id. Therefore, lawyers may consider implementing a secure communication process that is used for all client related matters.
Securing SMS/Text Messages
Text messaging has grown in popularity as a tool for brief client communication. Unfortunately, the news is full of stories of texting gone horribly wrong. There are a...