Tuesday, May 19, 2015

Lawyers may be violating ethical duty of client confidentiality when using public wifi to send emails

From The Legal Intelligencer:

Lawyers Cannot Allow Technology to Outpace Ethics


I often take my computer or tablet to a seminar or court. I get the password for the Internet. I obviously take notes, but I also check email during the seminar. Should I be doing this?


Probably not, unless you have the ability to protect the confidentiality of your messages.


The Pennsylvania Association of Criminal Defense Lawyers, at its annual seminar April 23 and 24, presented attorney Steven Pacilio. Pacilio, who formerly was an assistant district attorney and now has his own practice, is not only a good trial lawyer but an expert on computer forensics. During the course of the seminar, he checked his computer and said he saw 31 people in the audience were looking at their email. He said he could list who they were sending emails to and read what they were saying.


He noted that he and everyone else obtained the password to the Internet from the hotel where the seminar was held. He said he could access the emails with a simple device anyone could purchase. Obviously, he didn't print anything out and he deleted everything, but the message was very clear that modern technology raises serious issues of protecting confidentiality. This example during the seminar should have enormous consequences for all lawyers and should be a wakeup call. Every lawyer knows they have an absolute duty of confidentiality under Rule of Professional Conduct 1.6. A lawyer cannot stick his head in the sand and ignore the obvious when his use of modern technology in the practice of law is not protecting confidentiality, as seen during the seminar.


The Rules of Professional Conduct have been changed to require protection of confidentiality and require a lawyer to have knowledge in the area of technology.


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Does this mean I can't send a client first class mail because a letter opener is a simple device anyone could buy and use to read my correspondence?

Posted by: Tom | May 19, 2015 6:21:46 PM

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