WhoopsâLegal Malpractice Prevention: Keeping Client Confidences in the Digital Age, 0616 COBJ, Vol. 45 No. 6 Pg. 69
| Author | J. Randolph Evans, Shari Klevens, Lino Lipinsky |
J. Randolph Evans, Shari Klevens, Lino Lipinsky
This Department is sponsored by the CBA Lawyers' Professional Liability Committee to assist attorneys in preventing legal malpractice. For information about submitting a manuscript or topic suggestion, contact Andrew McLetchie—(303) 298-8603, a_mcletchie@fsf-law.com; or Reba Nance—(303) 824-5320, reban@cobar.org.
About the Authors
Randy Evans is an author, litigator, columnist, and expert in the areas of professional liability, insurance, commercial litigation, entertainment, ethics, and lawyer's law, and handles complex litigation throughout the world. He has authored and co-authored eight books and several newspaper columns. He co-chairs the Georgia Judicial Nominating Commission and serves on the Board of Governors of the State Bar of Georgia—randy.evans@dentons.com. Shari Klevens is a partner in the Atlanta and Washington, DC offices of Dentons US LLP. She represents lawyers and law firms in the defense of legal malpractice claims and counsels lawyers concerning allegations of malpractice, ethical violations, and breaches of duty. She is the chair of the firm's Defense and Risk Management Practice—shari.klevens@dentons.com. Lino Lipinsky is a partner in the Denver office of Dentons US LLP. He represents clients in real estate, trade secrets, professional liability, creditor's rights, employment, and contract cases. He is a member of the CBA Board of Governors, serves on the Board of the Colorado Judicial Institute, and is a former president of the Faculty of Federal Advocates —lino.lipinsky@dentons.com.
Authors' Note
Readers' comments and feedback on this series of "Whoops—Legal Malpractice Prevention" articles are welcomed and appreciated. References in the articles to "safest courses to proceed," "safest course," or "best practices" are not intended to suggest that the Colorado Rules require such actions. Often, best practices and safest courses involve more than just complying with the Rules. In practice, compliance with the Rules can and should avoid a finding of discipline in response to a grievance or a finding of liability in response to a malpractice claim. However, because most claims and grievances are meritless, effective risk management in the modern law practice involves much more. Hence, best practices and safer courses of action do more: they help prevent and more quickly defeat meritless claims and grievances.
The standard of skill, care, prudence, and diligence for Colorado attorneys includes taking adequate care to protect client confidences.1 The Office of the Presiding Disciplinary Judge can discipline an attorney for the failure to maintain client confidences, or to ensure that the individuals whom the attorney manages or supervises maintain client confidences.2 Furthermore, attorneys can face a malpractice claim for such failures. For example, clients whose attorneys failed to adequately protect their trade secrets can assert claims for professional negligence.
Despite the serious consequences of failing to maintain client confidences and secrets, many attorneys overlook this important obligation. What's more, the widespread use of electronically stored information has made it easy for even the most scrupulous attorneys to inadvertently disclose privileged information. This article addresses challenges today's attorneys face in maintaining client confidences and offers best practices for meeting this obligation.
Keeping Secrets in the Internet Age
In the past, attorneys needed to take special care to ensure that their colleagues and employees understood the risk of innocent elevator talk or casual conversations in public settings. As legal malpractice suits illustrate, loose lips can sink ships—including business deals, settlements, cases, and negotiations.3 Those risks pale in comparison to the risks that attorneys face in the world of social media and Internet search tools.
Data security is an even more complex challenge for law firms, as it is in many other industries. The American Bar Association reported that, in 2015, approximately one-quarter of all U.S. law firms with 100 or more lawyers had experienced a data breach through hacker or website attacks, break-ins, or lost or stolen computers or phones.4 In 2015, 15% of all law firms, regardless of size, had reported an unauthorized intrusion into their computer files, up from 10% in 2012.5
Just a few months ago, in late March, the legal community was rocked by reports that intruders had broken into the computer networks of a number of venerable law firms, including Cravath Swaine & Moore LLP and Weil Gotshal & Manges...
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