The State Bar seeks public comment on Proposed Formal Opinion Interim No. 16-0002 (Data Breaches)
Deadline: March 30, 2020
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 State Bar policy and procedure, the Committee shall publish proposed formal opinions for public comment (See, State Bar Board of Trustee Resolutions July 1979 and December 2004. See also, Board of Trustee Resolution November 2016).
On May 10, 2018, the California Supreme Court issued an order approving 69 new Rules of Professional Conduct, which will go into effect on November 1, 2018. Information about the new rules is available at the State Bar website. Proposed Formal Opinion Interim No. 16-0002 interprets the new Rules of Professional Conduct.
Proposed Formal Opinion Interim No. 16‑0002 considers: What are a lawyer’s ethical obligations with respect to unauthorized access by third persons to electronically stored client confidential information in the lawyer’s possession?
The opinion interprets rules 1.1, 1.4, 1.6, 5.1, 5.2, and 5.3 of the Rules of Professional Conduct of the State Bar of California; Business and Professions Code sections 6068(e) and 6068(m); and Civil Code section 1798.82.
Lawyers who use electronic devices which contain confidential client information must assess the risks of keeping such data on electronic devices and computers, and take reasonable steps to secure their electronic systems to minimize the risk of unauthorized access. In the event of a breach, lawyers have an obligation to conduct a reasonable inquiry to determine the extent and consequences of the breach and to notify any client whose interests have a reasonable possibility of being negatively impacted by the breach.
At its December 6, 2019 meeting and in accordance with its Rules of Procedure, the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 16-0002 for a 90-day public comment distribution.
State Bar Standing Committee on Professional Responsibility and Conduct
March 30, 2020
Office of Professional Competence, Planning and Development
State Bar of California
180 Howard Street
San Francisco, CA 94105