A lawyer’s professional obligations include keeping client information confidential. Technology is an integral part of modern businesses and law practices are among those impacted. While there is a move afoot to expand the lawyer’s responsibilities to include understanding legal technology, a lawyer using reasonable effort and a bit of thoughfulness can understand the challenges around confidential information.
Legal professionals use tools and technology to access and store client information. We may have traded the pen and cardboard box for the laptop and external hard drive, but the concepts around protecting client information are the same. As this lawyer in Manitoba found when his storage shed full of paper client files blew open in a storm, you need to put the same care into protecting your physical client information and your digital information.
There are a number of Rules that I think impact technology in the modern law practice. Obviously, the rules that relate directly to confidentiality but there are also other rules that may apply, depending on your situation. I’m going to refer to the Ontario rules, based on the Canadian Federation of Law Societies’ Model Rules, but will link to the American Bar Association’s Model Rules as well, which are advisory but are adopted in some form by US state lawyer regulators.
- Confidentiality: Rule 3.3
[ Canadian Model Rule 3.3 | ABA Model Rule 1.6 ]
- Duty of Supervision: Rule 6.1
[ Canadian Model Rule 6.1 | ABA Model Rule 5.3 ]
- Duty of Safe Keeping: Rule 3.5
[ Canadian Model Rule 3.5 | ABA Model Rule 1.15 ]
In a nutshell, my interpretation of the rules is that they (a) require a lawyer to keep client information confidential, (b) to supervise those who have access to confidential information to ensure they also keep it confidential, and (c) to secure it in a reasonable manner.
Now, if you read those rules, you won’t see anything about technology. Most professional rules do not directly discuss technology and, hopefully, never will. Regulators are not nimble enough when it comes to rule-making to adapt to the rapid change of technology. Frankly, they shouldn’t have to. The responsibilities lawyers have are pretty straightforward, so long as they understand how they’re using their technology.
Know Your Privacy Obligations
Professional rules focus on confidentiality. In many jurisdictions, including Ontario, law firms are businesses that may have responsibilities to protect client private information. As a legal professional, you should understand what your responsibilities are here, because you might lose private client information as well as confidential information. In that situation, you could have an entirely different set of problems. Canadian lawyers can refer to the Privacy Commissioner’s PIPEDA and Your Practice guide for law firms. If you practice in other jurisdictions, you should be aware of privacy laws governing consumer information in those places as well.