Monday, October 18, 2010

ABA 20/20 Commission Hearing on Client Confidentiality and Lawyers' Use of Technology (Part 1)

Last week, the ABA Commission held a hearing on the issue of Client Confidentiality and Lawyers' Use of Technology. The Commission is charged with reviewing ABA Model Rules of Professional Conduct and other regulatory rules affecting law firms in order to develop policy recommendations in response to changes in technology and global legal practices. In a draft issue paper, the Commission set out the modern realities of information risk management:
  • “When data was strictly in hard copy form, lawyers could easily discern how to satisfy their professional obligations and did not need elaborate ethical guidance. Now that data is predominantly in electronic form, however, the necessary precautions are more difficult to identify.”
Five speakers were invited to testify at the hearing, including Brian Lynch from IntApp and the Risk Roundtable Initiative. Mr. Lynch explored how technology creates new information risk management challenges for law firms, which face an expanding and evolving set of confidentiality drivers. These drivers include ethical screens necessitated by lateral hires, more stringent client outside counsel guidelines, and regulations such as the HITECH Act, ITAR and several data privacy laws. He these issues noting:
  • "Increasingly, law firms discover that the use of electronic information management tools (for example, document management, records, electronic time entry, enterprise search) creates confidentiality challenges. Many of these technologies are designed to make internal information easily accessible within the firm in order to enable re-use and knowledge sharing. However, open access to information also presents new risks and challenges."
  • "Given the growing volume of information stored electronically, more and more firms are using search software internally, dramatically increasing the chance that sensitive information, previously thought obscured from internal eyes, will be accessed inappropriately. Importantly, confidentiality breaches typically don’t stem from malfeasance, with so much information and so many policies to keep track of, human error is usually the biggest risk to control."
  • "The ABA can play a vital role in helping the legal community understand the changing confidentiality management landscape, prudent steps they should take, and standards they should follow to best protect themselves and their clients."
For more information on the ABA Ethics 20/20 Commission and a PDF of submitted testimony and exhibits speakers testifying at the hearing, see the ABA web site.

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