Lawyers Have Duty to Protect Client Contacts in Smartphones

• Pages: 7-7
• Date: 01 October 2023
• Author: Mariah L. Sukalski
• Subject Matter: Civil Law

Published in Litigation News Volume 49, Number 1, Fall 2023. © 202 3 by the American Bar As sociation. Reprodu ced with permission . All rights reser ved. This information o r any portion ther eof may not be copied o r disseminated in any form

or by any means or stored i n an electronic database o r retrieval syst em without the expr ess written co nsent of the American B ar Association.

ttorneys should think twice

before allowing smartphone

apps to access their contact

list. Most attorneys recog-

nize their obligation to

protect this information, but they may

not be aware of all situations where

such information may risk exposure.

According to a state ethics opinion, an

attorney may not share stored contacts

with a smartphone application if those

contacts contain any conf‌idential client

information. In some situations, that

may even include the client’s identity.

ABA Litigation Section leaders remind

practitioners that the principles behind

maintaining the conf‌identiality of client

information remain the same even with

advances in technology.

In Ethics Opinion 1240, the New

York State Bar Association Committee

on Professional Ethics considered an

attorney’s duty under the New York

Bar Association’s Rule 1.6 to protect

client information stored as contacts

on smartphones. New York Rule 1.6

def‌ines conf‌idential information as

“information gained during or relating

to the representation of a client, what-

ever its source, that is (a) protected by

the attorney-client privilege, (b) likely

to be embarrassing or detrimental to

the client if disclosed, or (c) informa-

tion that the client has requested be

kept conf‌idential.”

Under the rule, attorneys must

“make reasonable eorts” to prevent

conf‌idential client information from

unauthorized disclosure. The rule pro-

vides exceptions where the client gives

informed consent, there is implied dis-

closure, or under a set number of cir-

cumstances if reasonably necessary.

Smartphones contain several

potential conf‌identiality concerns.

According to the opinion, attorneys

must understand how smartphones

work, including applications, online

activity, or otherwise, before using

them. Attorneys must also consider

whether their smartphone use in these

Lawyers Have Duty to Protect Client

Contacts in Smartphones

respects puts their clients’ conf‌idential

information at risk and whether they

must protect that information. The

opinion emphasizes the need to pay

attention to what applications access

from the smartphone.

Another consideration is who or

what is reviewing the information:

human or machine review. For instance,

the opinion provides that access can-

not be granted “unless the lawyer con-

cludes that no human being will view

that conf‌idential information, and that

the information will not be sold or

transferred to additional third parties,

without the client’s consent.”

Contacts, as the opinion points out,

potentially contain numerous pieces of

identifying information about the per-

son the contact represents: phone num-

bers, email addresses, work or residence

addresses, employer, birthday, nicknames,

and a notes section that could contain

further information about the individual

or how the phone owner knows the per-

son. Indeed, even the client’s identity

alone may be conf‌idential. Smartphone

applications that request access to the

phone owner’s contacts may exploit that

information for marketing, soliciting, or

disseminating information.

The committee advises that the ethi-

cal obligations under Rule 1.6(c) require

an attorney to make reasonable eorts

to prevent conf‌idential client informa-

tion from disclosure. When a smart-

phone application asks for access to an

attorney’s contacts, the f‌irst step is to

determine whether any are conf‌idential

under Rule 1.6. Besides reviewing the

def‌inition of “conf‌idential information,”

the opinion also advises attorneys to

consider whether the smartphone could

identify them as an attorney, their prac-

tice area, or their contacts as clients.

If there is conf‌id ential information in

the contacts , the attorney cannot con-

sent to sharing it. T he only exceptions

are where (1) the a ttorney concludes no

person will view th e conf‌idential infor-

mation, and (2) the i nformation will not

be sold or transfe rred by the applica-

tion to additional th ird parties without

client consent . Attorneys must review

the applicatio n’s policies and practices

to ensure they under stand the risks

and can decid e whether the excep-

tions apply.

Litigation Section leaders suggest

there is much to learn from the deci-

sion. “One of the big takeaways is to

be very careful in terms of sharing any

information online or giving any third

parties access to your contacts, emails,

things like that,” advises Michael S.

LeBo, Newport Beach, CA, cochair

of the Section’s Professional Liability

Litigation Committee. For example,

LeBo advises practitioners to con-

sider the access allowed to devices

such as jointly used computers,

Amazon’s Alexa devices, or others with

AI technology.

Even though technol ogy is con-

stantly evolving, S ection leaders say

attorneys must always a ssess the risk

when faced with new co ncerns. “A cell

phone is simila r to a f‌ile folder that

contains client information,” reminds

John M. Bar kett, Miami, FL, cochair of

the Section’s Ethic s & Professionalism

Committe e. “You do not want to lose

it. You do not want to make it availabl e

for someone to pe ruse through it. You

do not want someo ne looking over your

shoulder or sit ting next to you to read

it. So you have to protect it,” re com-

mends Barket t.

By Mariah L. Suka lski, Litigation News Contributing Editor

FALL 2023 • VOL. 4 9 NO. 1

7 | A BA LITIGATION SECTION

ETHICS STRU GGLES IN THE LEGAL WORL D