Category Archives: Ethics

Ransomware Attack, New Ethics Opinion, Underscore Lawyers’ Duty of Tech Competence

By on . Posted in Ethics

Ransomware_AttackThis week’s ransomware attack against DLA Piper, one of the nation’s largest law firms, provided a harsh reminder of the need for lawyers and law firms to be vigilant about cybersecurity. In DLA Piper’s case, the firm’s security system detected suspicious activity and its IT team acted quickly to isolate the malware, according to a statement, but as of yesterday, the firm was still working to restore full operations.

A ransomware attack against a global law firm is a major intrusion, but it is important to remember that such attacks often begin with a single malicious email and can happen to law firms of any size. Opening a malicious attachment or clicking a malicious link can plant the ransomware virus and allow it to propagate throughout a firm. Continue reading

Webinar Tomorrow: The Duty of Technology Competence and E-Discovery

What are an attorney’s ethical duties of competence in the handling of discovery of electronically stored information? That will be the topic of a free webinar tomorrow, Oct. 29, from 1 to 2 p.m. Eastern time, sponsored by Catalyst.

The issue has come to the forefront as a growing number of states have recognized that lawyers have an ethical duty to be competent in technology. Recently, a State Bar of California ethics opinion extended that duty of technology competence to e-discovery.
Continue reading

California Finalizes Ethics Opinion Requiring Competence in E-Discovery

shutterstock_107714909Last February, we reported here on a proposed ethics opinion from the State Bar of California that would require lawyers who represent clients in litigation either to be competent in e-discovery or associate with others who are competent. At that point, the bar was accepting public comments on the proposed opinion in advance of issuing a final opinion.

Now, that opinion has been finalized and was issued on June 30 as Formal Opinion No. 2015-193. The final opinion largely mirrors the proposed opinion, with only minimal changes. As before, the opinion says that attorneys have a duty to maintain the skills necessary to integrate legal rules and procedures with “ever-changing technology.” In support of that statement, it cites the American Bar Association’s 2012 amendment to the Model Rules that discussed the duty of lawyers to keep abreast of changes in the law, “including the benefits and risks associated with relevant technology.” Continue reading

California Considers Ethical Duty To Be Competent in E-Discovery

Many attorneys still consider e-discovery to be a niche area of law practice, one they would prefer to stay well away from. But do lawyers have an ethical responsibility to be knowledgeable about e-discovery and competent in its practice? In California, the answer could soon be, “Yes.”

A proposed ethics opinion of the State Bar of California (Proposed Formal Opinion Interim No. 11-0004) would require attorneys who represent clients in litigation either to be competent in e-discovery or associate with others who are competent. The bar is accepting public comments on the proposed opinion until April 9, 2015. Continue reading

Latest Ethics Opinion on Cloud Computing Emphasizes Duty of Competence

New Hampshire has become the latest state to weigh in on the ethics of using cloud computing in the practice of law. The Ethics Committee of the New Hampshire Bar Association recently published Advisory Opinion #2012-13/4, in which it adopted the consensus opinion among states that a lawyer may use cloud computing consistent with his or her ethical obligations, as long as the lawyer takes reasonable steps to ensure that sensitive client information remains confidential.

While the opinion mirrored much of what other states have said on the ethics of cloud computing, it took a slightly different tack from some of the other opinions in its discussion of lawyer competence as it relates to cloud computing. Continue reading

Florida Legal Ethics Opinion Clears Way for Cloud Computing

Florida has become the latest state to weigh in on the legal ethics of cloud computing, joining other states that have done so in concluding that lawyers may ethically use cloud computing, provided they exercise due diligence to ensure that the cloud provider maintains adequate safeguards to protect the confidentiality and security of client information.

The Professional Ethics Committee of the The Florida Bar issued the proposed opinion (Proposed Advisory Opinion 12-3) Jan. 25. The committee concluded: Continue reading

New ABA Ethics Rule Underscores What EDD Lawyers Should Already Know: There’s No Hiding from Technology

The legal profession underwent a sea change last week, but few lawyers even knew about it. In a historic but little-heralded move, the American Bar Association said that lawyers must be competent not only in the law and its practice, but also in technology.

The ABA’s House of Delegates voted to amend the comment to its Model Rule of Professional Conduct governing lawyer competence to make clear that a lawyer’s skill set must include technology.

The rule itself remains unchanged. It says: Continue reading

Mass. Joins Other States in Ruling that Cloud Computing is Ethical for Lawyers

The Massachusetts Bar Association has issued an ethics opinion concluding that lawyers may use cloud services to store and synchronize digital files containing client information, provided the lawyer takes reasonable measures to ensure that the service’s terms of use and data-privacy policies are compatible with the lawyer’s professional obligations. However, lawyers should not use cloud services for clients who expressly request that their documents not be stored online and lawyers should not store “particularly sensitive” information in the cloud without first obtaining the client’s express consent, the opinion says. Continue reading

Two New Legal Ethics Opinions Suggest Clear Skies Ahead for Cloud Computing

Here is the latest legal-ethics forecast for cloud computing in the legal profession: Clear skies ahead.

Two new ethics opinions in recent weeks on lawyers’ use of the cloud add further weight to what has so far been the consensus of state ethics panels–that it is ethical for lawyers to store client documents in the cloud and use cloud-based applications, provided the lawyers take reasonable safeguards to ensure the safety and security of the data. Continue reading

NC Bar Goes Back to the Drawing Board on Cloud Ethics

One thing seems certain about the Ethics Committee of the North Carolina State Bar—it is trying hard to get its opinion right on the ethics of cloud computing.

In April 2010, the committee issued a proposed opinion that addressed the question of whether a law firm may ethically use Software as a Service in light of a lawyer’s duty to safeguard confidential client information and protect client property from destruction or loss. The opinion answered the question in the affirmative, “provided steps are taken effectively to minimize the risk of inadvertent or unauthorized disclosure of confidential client information and to protect client property, including file information, from risk of loss.” Continue reading