You've Been Hacked: Now What?

• Author: Jason Tashea
• Pages: 29-30

You’ve Be en

Hacked:

Now What?

Lawyers must tell clients

about breaches of their

data—and take steps

to protect it

By Jason Tashea

Lawyers have an obligation to sa fe-

guard client data and noti fy clients of

data breaches, and the A BA Standing

Committee on Ethic s and Professional

Responsibility has i ssued a formal opin-

ion that rearms th at duty.

In Formal Opinion 483, issued in

October, the standing comm ittee also

provided new guidance t o help attor-

neys take reasonable st eps to meet this

obligation.

“Lawyers today fa ce daunting chal-

lenges from the risk of data brea ches

and cyberatta cks that can lead to disclo-

sure of client confidences,” says Barbara

S. Gillers, chair of the A BA Standing

Committee on Ethic s and Professional

Responsibility. “Formal Opinion 483

oers helpful guidance on how the A BA

Model Rules of Professional Conduct

should inform lawyers’ approaches t o

these risks in order to c omply with the

duty to protect client inform ation.”

This opinion bo okends the standing

committee’s May 2017 Formal Opinion

477R, which set forth a l awyer’s ethi-

cal obligation to secure prote cted client

information when communicating digi-

tally, says Lucian Pera, a par tner at

Adams and Reese in Memphis, Tennes-

see, and co-author of an ar ticle in the

second edit ion of the ABA Cybersecur ity

Handbook.

The new forma l opinion only dis-

cusses breaches of client dat a, not other

data breaches that may a lso require

action on the part of an at torney or firm.

“When a breach of protect ed cli-

ent information is either suspect ed or

detected, Rule 1.1 requi res that the law-

yer act reasonably and promptly to

“Lawyers who are una ble to continue client representation in litigation

matters must seek the cour t’s permission to withdraw as required by law

and court rule s.”

The opinion highlights an import ant point for lawyers—“diligent prepa-

ration,” says Wendy Hu Ellard, a partner at Baker Donelson in Jackson,

Mississippi, whose clients are public or private nonprofit entities, c ontrac-

tors and industry a ssociations impacted by disaster s.

“I have seen situations where lawyers were not prepar ed,” Ellard

recounts. “There ca n be obvious issues with paper files and inabilit y to

comply with filing deadl ines during a large event. But I’ve also seen issues

with electronic file a ccess following an event—many lawyers do not have

backup systems in pla ce to account for system crashes and ina ccessi-

bility.” Ellard says the opinion is a timely reminder of attor neys’ ethical

obligation to remain vigi lant even during times of disaster and prov ides

actionalbe tips to rem ain in compliance.

LAWYER DISPLACEMENT AND VOLUNTEERING

The opinion also provides guida nce to lawyers who are displaced from

their jurisdict ions and seek to practice law in another jurisdic tion. Such

displaced lawyer s may be able to practice temporarily in another jur is-

diction, as ABA Model Rule 5. 5(c) indicates. However, displaced law-

yers need to obtain approval f rom the new jurisdiction. The formal ethics

opinion cites a key provision of the ABA Model Cou rt Rule on Provision

of Legal Serv ices Following Determination of Major Disaster. That ru le

provides in part th at a lawyer displaced by a disaster “may prov ide legal

services in t his jurisdiction on a temporary basi s if permitted by order of

the highest court of the other jur isdiction.”

The opinion also explains t hat lawyers practicing in jurisdic tions not

impacted by a disa ster may wish to volunteer their service s to those who

are impacted. “Out- of-state lawyers may provide representation to dis as-

ter victims i n the aected jurisdiction only when perm itted by that juris-

diction’s laws or rules, or by order of the jurisdict ion’s highest court.”

The ABA Model Court Rule on Prov ision of Legal Services Following

Determination of Major Disa ster requires that “the supreme court of the

aected juri sdiction must declare a major disaster and issue an order t hat

allows lawyers in go od standing from another jurisdict ion to temporarily

provide pro bono legal serv ices in the aected jurisdict ion through a non-

profit bar association, pro bono progra m, legal services program or ot her

organization designat ed by the courts.”

Ellard says “Opinion 482 provides helpfu l points on how impacted

lawyers can conti nue their practice elsewhere and how those who aren’t

impacted can pot entially assist in other jurisdic tions. I hope all of my col-

leagues heed the ca ll and consider volunteering their time through the

ABA or some other reputable pro bono legal serv ices provider.”

The opinion bluntly warns again st “the possibility of improper solicita-

tion in the wake of a disas ter.” ABA Model Rule 7.3(b) generally prohibits

direct solicitation of potent ial clients: “A lawyer shall not solicit profes-

sional employment by live person-to-person contac t when a significant

motive for the lawyer’s doing so is the lawyer or law firm’s pecunia ry gain.”

Given some egregious behavior by some lawyer s after disasters, the

caveat from the opinion is understa ndable. “This part of the opinion

reflects a concern about law yers possibly overreaching clients in the

direct face -to-face solicitation context,” Sahl says.

Ethics expert s praised the opinion for its comprehensiveness and prag-

matism. “I am pleased to se e Opinion 482,” says Ellard. “ Through my

prior experience with t he ABA’s Sta nding Committee on Disaster Re -

sponse and Preparednes s and service on the YLD Disa ster Legal Services

Team, I have seen firsthand the impact s to those in our profession and to

the public. I very much appreciate the continuing support a nd eorts of

the ABA to assis t lawyers that are impacted and the public general ly.” Q

Practice

DECEMBER 2018 ABA JOURNAL || 29