Management Assistance Program
The Ethics of Attorney-Client Email and Having Client Data on a Smartphone
By Jim Calloway
Most of us are doing business in the digital world these days, but protecting your clients’ confidential information must always be top of mind. Two recently released opinions from the Pennsylvania Bar may provide helpful guidance for lawyers.
Formal Opinion 2022-500 Ethical Considerations for Lawyers Storing Information Relating to the Representation Of A Client On A Smartphone is brief. It highlights how smartphone apps can inadvertently compromise client information without an attorney being aware of the sharing. The conclusion is straightforward:
“If a lawyer stores information governed by Pa.R.P.C. 1.6 on a smartphone, then the lawyer must take steps to prevent access to or disclose of the information. Consequently, a lawyer may not consent to share the information with a smartphone app unless the lawyer concludes that no human being will view that information, and that the information will not be sold or transferred to additional third parties, without the client’s consent.”
Let me suggest that if you have apps on your smartphone that you have not used in a long time, they may have been sold to a third party with a different business model, and you may not know what access they have to information or how they will use it. Just delete them!
Formal Opinion 2022-400 Ethical Obligations for Lawyers Using Email and Transmitting Confidential Information is a 15-page opinion discussing what lawyers may and must do (in the committee’s opinion) to be safe using email with client matters. This is a great resource that should be downloaded and saved. It includes an appendix of selected opinions from other states relating to this topic.
Note: Ethics advisory opinions from other jurisdictions are not binding on Oklahoma Bar members. In fact, “advisory” means they are not binding on lawyers from the issuing jurisdiction. However, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility is well known for insightful and persuasive ethics opinions on lawyers’ use of technology.