In general, attorneys must not reveal confidential information relating to the representation of their clients. Attorneys must make reasonable efforts to ensure the attorneys they supervise, as well as their nonlawyer employees, maintain client confidences. In modern days, technology virtually guarantees attorneys and clients will communicate electronically. While most attorneys would not knowingly disclose client confidences, there is a growing problem of unintended disclosure through electronic means. On a practical level, maintaining confidence is of utmost importance to both attorneys and clients. Attorneys may believe they are using good faith and competent, reasonable actions to protect their clients’ information from security breaches. Yet, through an act of carelessness they may inadvertently allow unauthorized access to the information. Attorneys have an ethical obligation to act in a reasonable fashion to protect their clients’ confidences. This includes the obligation to protect electronically stored information from unintended disclosure either from inadvertent release of the information or from failure to secure the data against unauthorized access. State statutes are becoming more specific and are imposing greater obligations on attorneys to provide notice to their clients. Some of these statutes create a civil cause of action against attorneys. Additionally, all statutes raise the bar on what attorneys are required to do when a breach occurs. Even if technical notices satisfy the statutory requirements, it would not help to maintain the goodwill of their clients. Most attorneys are not trained to meet the increasingly complicated area of information assurance. Preserving clients’ confidence in their attorneys and the legal system is critical to the success of the legal profession.
St. Mary's University School of Law
Bill Piatt & Paula deWitte,
Loose Lips Sink Attorney-Client Ships: Unintended Technological Disclosure of Confidential Communications Essay.,
St. Mary's L.J.
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol39/iss4/3
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