Tuesday, January 19, 2016

Laterals, Leaking Confidential Information (and a SLAPP)

Two interesting stories on lateral information risk. First via Law360 [subscription]: "Anti-SLAPP Law Doesn't Cover Attys' Emails, Calif. Court Says" --
  • "A California appeals court on Wednesday denied an effort by two former attorneys from law firm WHGC PLC to escape a suit accusing them of sharing confidential information with their new employer, Fish & Tsang LLP, saying emails to clients announcing the move are not protected by any anti-SLAPP statutes."
  • "A three-judge panel for California's Fourth Appellate Division found that emails sent in August 2014 by John van Loben Sels and Jennifer Shih to several current and former WHGC clients do not qualify as protected speech..."
  • Said the court: "Appellants’ emails, announcing their move from one law firm to another, have no connection with any issue under review by a judicial body...  Van Loben Sels and Shih failed to carry their burden to show that the conduct alleged in the complaint was an act in furtherance of their right of petition or of free speech in connection with a public issue."
Two Dentons partners write[via The Recorder]: "Keep Control of Your Firm's Digital Data" --
  • "Many law firms issue or subsidize laptops for their attorneys. So what happens when attorneys move between firms? Can they take their laptops with them? This very issue has arisen in lawsuits between law firms. The law firm from which the attorneys departed may have concerns that laptops contain sensitive, proprietary or client confidential data; the law firm that hired the departing attorneys may want to ensure that its new employees can transition their practice seamlessly."
  • "Today, departing attorneys can take information—a law firm’s most valuable commodity—without taking a single box of files or photocopying a single sheet of paper. Forms, client contact information, and client files can be taken with the single stroke of a computer key. Controls aimed at protecting or securing hard copies are largely meaningless in today’s electronic world."
  • "Control is essential to a law firm’s ability to fulfill its obligations to protect not only client confidences and secrets but also its business interests. In a business where time is money, control is inversely related to efficiency. In other words, the more difficult that firms make access to information, the less efficient attorneys can be. Less efficiency inevitably translates to less money."
  • "Today’s law firms must maintain a delicate balance by implementing controls sufficient to fulfill ethical and professional obligations (and to protect their most valuable asset), but not so formidable as to hinder the law firm’s ability to make money. To strike this balance, firms must shift their focus from physical possession of client information to 'virtual' control."
See the complete article for more detail (including relevant professional standards and case law) and recommendations, as well as previous blog coverage on this topic.

Some organizations are using technology tools to monitor abnormal lawyer document activity and provide early warnings by watching for unusual activity. This approach can give management early visibility so they can investigate and address any concerns before they become serious crises. (Interested readers can learn more about Intapp Activity Tracker  and read a few testimonials from firms making use of the technology as a risk mitigation strategy.)

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