Sunday, September 17, 2017

Client Information Risk Management (Ethics, Border Searches, Marketing & More)

Several interesting stories and updates to share concerning managing sensitive client information. First up: "Dissemination of Confidential Client Information Discouraged in Formal Ethics Opinion 130" --
  • "The Colorado Bar Association Ethics Committee recently issued Formal Opinion 130, dated April 3, 2017. Formal Opinion 130 addresses the disclosure of confidential client information, including information that is publicly available, such as when the information has been on the news. The opinion concludes that dissemination of such information is prohibited by the Rules of Professional Conduct, and specifically states that there is no exception for information contained in the public record."
  • "Formal Opinion 130 also addresses the use of information about former clients, concluding that such use may be allowed under the Rules when such information is “generally known.” The opinion advises attorneys to exercise caution when using information about former clients."
Hinshaw's latest newsletter also notes: "Duty of Confidentiality – Marketing – Revealing the Identity of Current and Former Clients. Wisconsin Formal Ethics Opinion EF-17-02" --
  • "The opinion concludes that disclosure of a client’s identity, without informed consent, is prohibited unless the disclosure falls under limited exceptions... This extremely broad definition leads to confusion as to the scope of the rule. The duty to protect information thus defined is often misunderstood because lawyers confuse the duty of confidentiality with attorney-client privilege."
  • "The duty of confidentiality extends automatically even if the client does not request the information be kept confidential or if the client does not consider it confidential. In order to disclose information relating to the representation of a client, it is the lawyer’s obligation to obtain informed consent, or determine if there is an exception that allows disclosure of the information. Even if the lawyer thinks that disclosure of the information is harmless, it does not mean that the disclosure is permitted, absent client consent. The Opinion recognizes that attorneys also have duties with respect to prospective clients, and that the duty of confidentiality continues beyond the death of a client. See Wisconsin Ethics Op. E-89-11."
  • "The ethical duty of confidentiality is extremely broad, applying to any information related to the representation of a client no matter the source. This information is protected regardless of privilege, status as public record, or where disclosure would be harmless. The duty extends to former clients and prospective clients. The disclosure of a client’s identity is prohibited unless the client gives informed consent, unless it is necessary to carry out the representation, or is within a specific exception to the rule. Attorneys should be mindful of this duty in all circumstances, and should consult their state version of Rule 1.6."
  • "The ACLU and the Electronic Frontier Foundation have sued the Department of Homeland Security to block U.S. Customs and Border Protection personnel from searching travelers’ electronic devices without warrants.  This has implications for lawyers who cross in and out of the U.S. with phones and laptops  containing confidential client information.  The CBP’s policy, which the ABA also has questioned, currently authorizes such searches even without a suspicion of wrongdoing."
  • "We first wrote about the issue last month, when the New York City Bar Association published an ethics opinion raising the client confidentiality issues and advising that in some circumstances lawyers should consider using “burner” phones, and avoid taking client confidential information across borders."

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