Proposed Formal Opinion Interim No. 08-0002 (Confidentiality and Technology).
The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct. In accordance with Tab 19, Article 2, Section 6(g) of the State Bar Board Book the Committee shall publish proposed formal opinions for a public comment period of no less than 60 days.
Proposed Formal Opinion Interim No. 08‑0002 considers whether an attorney violates the duties of confidentiality and competence he or she owes to a client by using technology to transmit or store confidential client information when the technology may be susceptible to unauthorized access by third parties.
The opinion interprets rules 3-100, 3-110 of the Rules of Professional Conduct of the State Bar of California and Business and Professions Code sections 6068, subdivision (e)(1).
The opinion digest states: Whether an attorney violates his or her duties of confidentiality and competence when using technology to transmit or store confidential client information will depend on the particular technology being used and the circumstances surrounding such use. Before using a particular technology in the course of representing a client, an attorney must take appropriate steps to evaluate: 1) the level of security attendant to the use of that technology, including whether reasonable precautions may be taken when using the technology to increase the level of security; 2) the legal ramifications to a third party who intercepts, accesses or exceeds authorized use of the electronic information; 3) the degree of sensitivity of the information; 4) the possible impact on the client of an inadvertent disclosure of privileged or confidential information or work product; 5) the urgency of the situation, and 6) the client’s instructions and circumstances, such as access by others to the client’s devices and communications.
At its September 10, 2009 meeting and in accordance with its Rules of Procedure (State Bar Board Book Tab 19, Art. 2, Sec. 6(g)), COPRAC tentatively approved Proposed Formal Opinion Interim No. 08‑0002 for a 90‑day public comment distribution with a January 4, 2010 deadline. Subsequently, at its August 6&7, 2010 meeting, COPRAC revised the opinion in response to the public comments received and, in further accordance with its Rules of Procedure, tentatively approved Formal Opinion Interim No. 08-0002 for an additional 30-day public comment distribution.
Proposed Formal Opinion Interim No. 08-0002
State Bar Standing Committee on Professional Responsibility and Conduct
5 p.m., September 20, 2010
Office of Professional Competence, Planning and Development
State Bar of California
180 Howard Street
San Francisco, CA 94105-1639
Ph. # (415) 538-2116
Fax # (415) 538-2171