The State Bar of California
  • Log in
  • News
  • Forms
  • Contact
About Us:
  • Our Mission
  • |
  • Who We Are
  • |
  • News
  • |
  • Careers
  • |
  • Business Opportunities
  • Public
    • Need Legal Help
      • Look Up a Lawyer
      • Using a Certified Lawyer Referral Service
        • Certified Lawyer Referral Services Directory
          • LRS FAQs for Consumers
          • File a Complaint about an LRS
          • How to Become a Certified LRS
      • Free Legal Help
    • Complaints & Claims
      • How to File a Complaint
        • Before You File
        • Why File a Complaint
        • Attorney Complaint
        • After You File
        • Después de presentar una queja
        • Nonattorney Complaint
        • Discipline Referral
      • Unauthorized Practice of Law Complaint
        • After You File
        • Después de presentar una queja por práctica no autorizada
      • Fee Disputes
        • FAQ
      • Client Security Fund
        • Client Security Fund Application Process
        • Application Instructions
      • Complaint Review Process
      • Lawyer Referral Service Complaints
        • Certified Lawyer Referral Service Complaints
        • Uncertified Lawyer Referral Service Complaints
      • FAQ
    • Free Legal Information
      • Before Selecting an Attorney
        • Finding the Right Lawyer
        • What a Certified Lawyer Referral Service Can Do for You
        • Your Initial Consultation
      • Working with an Attorney
        • What to Expect from Your Attorney
        • How to Work with Your Lawyer
        • What to Expect Regarding Fees and Billing
        • How to Avoid Problems
      • Resolving Problems
        • Problem with a Lawyer
        • Lawyer Fee Dispute
          • Lawyer Fee Dispute FAQ
        • Client Security Fund
      • Unauthorized Practice of Law
        • Avoiding Fraud by Immigration Consultants
        • Práctica no autorizada de la abogacía
        • Evite el fraude por parte de los consultores de inmigración
      • For Immigrants
        • Buscando ayuda con asuntos de inmigración
        • Immigration Legal Services Providers
        • Proveedores de servicios legales de inmigración
      • Legal Help After a Disaster
      • For Veterans & Service Members
      • Legal Services Fraud Alert for Homeowners
        • Alerta a Propietarios Referente al Fraude de Servicios Legales
      • Legal Services Fraud Alert for Renters
        • Alerta a Arrendatarios Referente al Fraude de Servicios Legales
      • Legal Guide Pamphlets
      • FAQ
    • Discipline
      • Attorney Discipline
      • Nonattorney Actions
      • Discipline Statistics
      • Look Up a Lawyer
    • Public Trust Liaison
      • Intermediario de Confianza Pública
    • En español
  • About Us
    • Our Mission
      • Protecting the Public
        • Regulation Overview
        • Public Comment
          • Public Comment Guidelines
          • Public Comment Archives
            • 2023 Public Comment
            • 2022 Public Comment
            • 2021 Public Comment
            • 2020 Public Comment
            • 2019 Public Comment
            • 2018 Public Comment
            • 2017 Public Comment
              • 2017-12
            • 2016 Public Comment
            • 2015 Public Comment
            • 2014 Public Comment
            • 2013 Public Comment
            • 2012 Public Comment
            • 2011 Public Comment
            • 2010 Public Comment
        • Reports
        • Public Records
      • Promoting Justice in California
      • Promoting Diversity, Equity, and Inclusion
        • DEI Leadership Seal Program
          • State Bar DEI Leadership Seal Progress
          • DEI Leadership Seal Application
    • Who We Are
      • Board of Trustees
        • Roster
        • Meetings
        • Audit Committee
          • Roster
        • Executive Committee
          • Roster
        • Finance Committee
          • Roster
        • Regulation and Discipline Committee
          • Roster
        • Public Comment Guidelines
        • Remote Participation Tips
        • Supreme Court Appointments
        • Board Task Forces
      • Committees
        • Meetings
        • Blue Ribbon Commission
          • Resources
          • Roster
        • California Board of Legal Specialization
        • Client Security Fund Commission
          • Roster
        • Committee of Bar Examiners
          • Committee of State Bar Accredited and Registered Schools
            • Roster
          • Law School Council
            • Roster
        • Committee on Professional Responsibility and Conduct
        • Council on Access and Fairness
          • Roster
        • Judicial Nominees Evaluation
          • Review Committee of the Commission on Judicial Nominees Evaluation
          • Roster
          • FAQ
          • JNE Demographics Reports
        • Lawyer Assistance Program Oversight Committee
          • Roster
        • Legal Services Trust Fund Commission
          • Roster
        • Privacy Law Group
      • Archived Committees
        • Ad Hoc Commission on the Discipline System
        • California Access to Justice Commission
          • Commission Roster
        • California Attorney Practice Analysis Working Group
        • California Paraprofessional Program Working Group
        • Closing the Justice Gap Working Group
        • Committee on Special Discipline Case Audit
        • Governance in the Public Interest Task Force
        • Limited License Working Group
        • Malpractice Insurance Working Group
        • Moral Character Working Group
        • Rules Commission 2017
        • Task Force on Access Through Innovation of Legal Services
      • Staff
      • State Bar Holidays
    • News
      • Fact Sheets
      • Reports
      • Multimedia
      • California Bar Journal Archive
    • Careers
      • Make a Difference
      • Develop and Grow
      • Benefits
      • Diversity, Equity, and Inclusion
      • View All Job Listings
      • Salary
    • Business Opportunities
      • Previous Opportunities
  • Attorneys
    • For Attorneys
      • About Your State Bar Profile
        • Fees & Payment
          • Agency Billing
          • Annual Fees FAQs
          • Voluntary Contributions
          • Fees and Charges
        • Status Changes
        • Address Change
        • Reporting Requirements
        • Certificate of Standing
      • Fingerprinting Rule Requirements
        • For In-State Attorneys
        • For Out-of-State Attorneys
        • For Out-of-Country Attorneys
          • Out-of-Country Deadline Extension Request
        • Multijurisdictional Practitioner
        • FAQ
        • Penalty Schedule
        • Limited Accommodations
        • Glossary
      • Lawyer Assistance Program
        • Voluntary LAP for Attorneys
        • Voluntary LAP for Law Students and Applicants
        • Monitored LAP
        • LAP Resources
        • LAP FAQ
      • Mandatory Fee Arbitration
        • Approved Programs
        • Forms & Resources
        • Arbitration Advisories
      • Opening and Managing Law Office
        • Insurance Programs
        • Limited Liability Partnerships
          • Forms
          • Rules
        • Law Corporations Program
          • Forms
          • Rules
        • Revoking Law Corporation
      • For Judges
      • FAQ
    • MCLE & CLE
      • Requirements
        • Types of MCLE Credit
        • Proportional Requirement
        • MCLE Recordkeeping
        • Attorney Exemptions
        • Attorney Exemptions FAQ
        • Approved Jurisdictions
        • Education Approval
          • Evaluate Credit
          • MCLE Credit Request
        • New Admittees
        • Inactive or Not Eligible Status
        • Out-of-State Residents
        • Good Cause Modification
      • Compliance
        • Who Must Report Compliance
        • Compliance Groups
        • Audit FAQ
      • New Attorney Training Program
      • E-Learning Portal
      • MCLE Providers
        • Provider Search
        • Single Activity Providers
        • Multiple Activity Providers
        • Provider Record Keeping
        • Qualifying Activities
        • ADA
      • MCLE Self-Study
        • MCLE Self-Study FAQs
      • CLE
        • CLE Self-Study
      • Rules
        • Rules Specific MCLE Credits
      • FAQ
    • Conduct & Discipline
      • Lawyer Regulation
      • Self-Reporting FAQ
      • State Bar Court
      • Client Trust Accounting & IOLTA
        • Client Trust Accounting Handbook
        • Client Trust Accounting Resources
        • Client Trust Account Protection Program
        • Client Trust Accounts and Bank Stability Concerns
        • CTAPP FAQ
        • CTAPP Training
        • Client Trust Account and IOLTA Registration
        • IOLTA Guidelines for Attorneys
        • IOLTA FAQ
        • IOLTA-Eligible Banks
        • Interest Rates
      • Rules
        • Rules of the State Bar
          • Title 1 Global Provisions
          • Title 2 Rights and Responsibilities of Licensees
          • Title 3 Programs and Services
          • Title 4 Admissions and Educational Standards
          • Title 5 Discipline
          • Title 6 Governance
          • Title 7 Miscellaneous
          • Appendixes
          • New and Amended Rules
        • Rules of Professional Conduct
          • Current Rules
            • Chapter 1. Lawyer-Client Relationship
            • Chapter 2. Counselor
            • Chapter 3. Advocate
            • Chapter 4. Transactions with Persons Other than Clients
            • Chapter 5. Law Firms and Associations
            • Chapter 6. Public Service
            • Chapter 7. Information About Legal Services
            • Chapter 8. Maintaining the Integrity of the Profession
          • Previous Rules
        • Selected Legal Authority
          • Constitution Excerpts
          • The State Bar Act
          • California Rules of Court
          • Statutes
      • Ethics
        • Hotline
        • Opinions
          • 2009-176 to Present
          • 1998-152 to 2008-175
          • 1992-126 to 1997-151
          • 1988-96 to 1991-125
          • 1984-76 to 1987-95
          • 1979-48 to 1983-75
          • 1971-24 to 1977-47
          • 1965-1 to 1970-23
        • Rules Spotlight Videos
        • Ethics Schools
          • Class Schedule
          • Ethics School FAQ
        • Ethics & Technology Resources
          • Ethics Opinions Related to Technology
          • Ethics Articles on Technology
          • Online Participatory MCLE Programs
          • Online Communication
          • Electronic Files
          • Law Firm Websites
          • Social Media
          • Internet/Email Scams
          • Miscellaneous
        • Senior Lawyers Resources
          • Rules
          • Opinions
          • Publications
            • Wellness Guide
          • Articles
          • MCLE
          • Links
          • Closing a Law Practice
          • Contact Us
          • Attorney Surrogacy
        • ADA Claims Information
        • Judicial Ethics
        • Attorney Civility and Professionalism
        • Publications
          • Ethics News
          • Ethics News Archive
          • Hotliner Articles
            • Archives
          • Pub 250
          • Compendium on Professional Responsibility Index
        • Committees
          • COPRAC
            • Education
              • Ethics Symposium
            • Opinion Requests
            • Rules
            • Roster
          • Rules Revision
            • Rules Commission 2014
              • Action Summaries
              • Meetings
              • Roster
    • Ethics
    • Legal Specialization
      • About Certified Specialization
      • Becoming a Certified Specialist
        • Exam Information
          • Exam Preparation Information
          • Laptop Computers
          • Testing Accommodations
      • Current Certified Specialists
      • Legal Specialty Areas
      • Specialist Search
      • MCLE Requirements for Certified Specialists
      • Education Providers
      • Governance
        • Board of Legal Specialization
          • Roster
      • Rules & Standards
        • Advertising
      • FAQ
    • Volunteer
      • Special Master
        • FAQ
        • Rules
        • List
  • Admissions
    • Requirements
      • Registration
      • Education
        • Pre-Legal Education
          • College Equivalency Education
        • Legal Education
          • Fixed Facility
          • Correspondence or Distance Learning
          • Law Office or Judge's Chamber
          • Foreign Education
            • Foreign Law Degree
      • Social Security Exemption
      • Attorney Applicants
      • Frequently Asked Questions
    • Examinations
      • Dates and Deadlines
      • Safelisting Tips for Email
      • California Bar Examination
        • July 2023 California Bar Exam
        • Laptops for Bar Exam
        • July 2023 Bar Exam FAQs
        • Instructions for Essay Questions and Performance Test
        • July 2023 Admittance Ticket Bulletin
        • Testing Centers
        • Hotel Information
        • California Bar Examination Scope
        • Exam Results
          • Bar Exam Pass List
        • Past Exams
        • Grading
        • Scaling
        • Refund of Fees Policy
        • Virtual Oath Packet
        • Attorney's Oath
      • First-Year Law Students' Examination
        • June 2023 First-Year Exam
        • June 2023 First-Year Exam FAQs
        • Admittance Bulletin
        • Exam Results
        • First-Year Exam Grading and Scope
      • Multistate Professional Responsibility Examination
      • Requesting Testing Accommodations
      • Exam Administration
        • Becoming a Grader
        • Becoming a Proctor
    • Moral Character
      • Moral Character Statement
      • Governing Law
      • Process
      • Factors and Conduct
      • Further Investigation and Informal Conferences
      • Guidelines
    • Special Admissions
      • Multijurisdictional Practice (MJP) Program
        • MJP Program Requirements and Process
        • MJP Program Types
      • Pro Hac Vice
      • Out-of-State Attorney Arbitration Counsel (OSAAC)
      • Foreign Legal Consultants (FLC)
        • FAQ
        • Foreign Legal Consultants List
      • Practical Training of Law Students
      • Provisionally Licensed Lawyers
        • Search
    • Law School Regulation
      • Law Schools
      • Committee of Bar Examiners Meetings
        • Minutes
        • Minutes Archive
        • Roster
      • Exam Statistics
  • Access to Justice
    • Initiatives
      • California Justice Gap Study
        • Justice Gap Study Survey Data
        • California Law Student Survey Data
      • Publications
      • Leadership Banks
    • Pro Bono
      • Pro Bono Directory
        • Central Coast and Eastern Sierra
        • Central Valley Area
        • Los Angeles Area
        • Sacramento and Northern California
        • San Diego and Imperial Valley
        • San Francisco Area
        • Statewide
      • Pro Bono Practice Program
      • Volunteer Opportunities to Assist Veterans and Service Members
      • Volunteer After a Disaster
      • FAQ
    • Grants
      • Legal Aid Funding
      • 2023 Grant Recipients
    • Diversity & Inclusion
    • Lawyer Referral Services
    • Financial Institutions
      • IOLTA-Eligible Financial Institutions
Seal of The State Bar of California The State Bar of California

Proposed Formal Opinion Interim No. 08‑0002 (Confidentiality and Technology)

Share on Facebook
Share on Twitter
Share on LinkedIn
Share with Email
SUBJECT

Proposed Formal Opinion Interim No. 08‑0002 (Confidentiality and Technology)

BACKGROUND

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.

DISCUSSION/PROPOSAL

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: 1) using a computer to which the organization employing the attorney and its supervisors have access; 2) using computer software to which the software developer has access; or 3) using a public or home wireless connection.

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: To comply with his or her duties of confidentiality and competence, an attorney must take appropriate steps to evaluate:

  1. the level of security attendant to the use of a particular technology in the course of representing a client;
  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; and
  5. whether reasonable precautions may be taken when using the technology to increase the level of security. 

With regard to use of a computer to which the organization employing the attorney and its supervisors have access, the attorney must consider the purpose of, and limitations on, the access and whether the organization itself or an individual with access may have an interest in the information that is in conflict with the client’s interest.  The attorney may need to take precautions to ensure that any interested persons will not be able to access the information or, absent informed client consent, the attorney may need to consider whether he or she can competently represent the client without using the computer in connection with the representation. 

With regard to access to confidential information by a software developer, the attorney may use the software as long as the attorney does not have a reason to believe the information will be used improperly.  However, he or she may need to discuss the issue with the client to determine appropriate methods of proceeding if the information at issue is highly sensitive or the software developer has an adverse interest in the matter. 

With regard to use of a public or home wireless connection, the attorney risks violating his or her duties of confidentiality and competence unless appropriate precautions are taken, such as using an adequate encryption device and a personal firewall.  Depending on the situation, including if the information at issue is of a highly sensitive nature, the attorney may need to avoid using the wireless connection entirely, or notify the client of possible risks associated with use of the wireless connection and seek the client’s informed consent to do so.  Generally, the attorney should not use an unsecured public wireless connection that does not require a password for access.

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)), the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 08‑0002 for a 90‑day public comment distribution.

ANY KNOWN FISCAL/PERSONNEL IMPACT

None.

ATTACHMENTS
  • Proposed Formal Opinion Interim No. 08-0002
SOURCE

State Bar Standing Committee on Professional Responsibility and Conduct

COMMENT DEADLINE

January 04, 2010

DIRECT COMMENTS TO:

Angela Marlaud
Office of Professional Competence, Planning and Development
The State Bar of California
180 Howard Street
San Francisco, CA 94105
415-538-2116
415-538-2171 Fax

Proposed Formal Opinion Interim No. 08‑0002 (Confidentiality and Technology)

Share on Facebook
Share on Twitter
Share on LinkedIn
Share with Email
  • Board of Governors Agendas
     
  • Commission for the Revision of the Rules of Professional Conduct
     
  • Committee on Professional Responsibility and Conduct
     
  • Professional Competence (Ethics)
     
  • State Bar Court

Proposed Formal Opinion Interim No. 08‑0002 (Confidentiality and Technology)

Share on Facebook
Share on Twitter
Share on LinkedIn
Share with Email
Selected Legal Authority
  • Constitution Excerpts
  • The State Bar Act (Bus. & Prof. Code §§ 6000 et seq.)
  • California Rules of Court
  • Related Statutes

Proposed Formal Opinion Interim No. 08‑0002 (Confidentiality and Technology)

Share on Facebook
Share on Twitter
Share on LinkedIn
Share with Email
Rules
  • Rules of the State Bar of California
  • Rules of Professional Conduct
Bar Seal
Protecting the public & enhancing the administration of justice.
  • Public
  • About Us
  • Attorneys
  • Admissions
  • Access to Justice
  • News
  • Forms
  • Careers
  • Staff Log in
  • San Francisco (Main Office)
    180 Howard St.
    San Francisco, CA 94105
    415-538-2000
  • Los Angeles
    845 S. Figueroa St.
    Los Angeles, CA 90017
    213-765-1000
Copyright © 2023 The State Bar of California
  • FAQ
  • User Policies
  • Contact
  • Share on Facebook
  • Share on Twitter
  • Share on LinkedIn