CBA Record November 2017

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LEGAL ETHICS
BY JOHN LEVIN
ABA Formal Opinion 477R and Client Data
Earlier this year I took a trip to
Russia–simply as a tourist having
never been to that part of the world.
As I usually do before traveling to another
country, I did some investigating into
Internet security since we usually take a
smart phone or tablet with us when we
travel to keep in contact with the rest of
the world.
I had been warned by friends that
between the Russian government and
Russian hackers there was not much secu-
rity–so I did some research of my own.
What I learned was that you should assume
that any communication you make while
in Russia is being intercepted and read (or
listened to) and any device you bring to
Russia will be corrupted and the informa-
tion on it copied. The common advice was
not to bring a “smart device” to Russia. So
we didn’t.
I noticed that our fellow travellers must
have had the same advice since people
were not constantly reading their tablets
or checking their phones for emails. One
person told me he had purchased a sim card
for use only in Russia and was not using
any password-protected sites while there.
This brings us to ABA Formal Opinion
477R (Revised May 22, 2017)– “Securing
Communication of Protected Client Infor-
mation”. While I did not see the opinion
until after my return, the opinion speaks
directly to my experience. The opinion
notes that “law enforcement discusses
John Levin is the retired Assis-
tant General Counsel of GATX
Corporation and a member of
the CBARecord Editorial Board.
John Levin’s Ethics columns,
which are published in each
CBA Record, are now in-
dexed and available online.
For more, go to
legalethics/.
hacking and data loss in terms of ‘when’
and not ‘if ’[,]” and that law firms are tar-
gets of hackers. The opinion then states:
“A lawyer generally may transmit infor-
mation relating to the representation of a
client over the internet without violating the
Model Rules of Professional Conduct where
the lawyer has undertaken reasonable efforts
to prevent inadvertent or unauthorized
access. However, a lawyer may be required
to take special security precautions to pro-
tect against the inadvertent or unauthor-
ized disclosure of client information when
required by an agreement with the client or
by law, or when the nature of the informa-
tion requires a higher degree of security.”
After reviewing the earlier ABA opin-
ions addressing confidentiality and cyber-
security, the Opinion rejects “requirements
for specific security measures (such as fire-
walls, passwords, and the like) and instead
adopts a fact-specific approach to business
security obligations that requires a ‘process’
to assess risks, identify and implement
appropriate security measures responsive to
those risks, verify that they are effectively
implemented, and ensure that they are
continually updated in response to new
developments.”The Opinion then engages
in a discussion of the factors a lawyer
ETHICS QUESTIONS?
The CBA’s Professional Responsibility Commit-
tee can help. Submit hypothetical questions to
Loretta Wells, CBA Government Affairs Direc-
tor, by fax 312/554-2054 or e-mail lwells@
.
should include in making the “reasonable
efforts determination.” The discussion is
too lengthy to summarize here, and I rec-
ommend that all lawyers carefully review
the Opinion.
Which brings us back to Russia. Unbe-
knownst to me at the time, I had followed
the recommendations of the Opinion
in analyzing the risks of disclosing con-
fidential information and the cost and
difficulties of safeguards. The resolution
was to buy a flip phone for use in Russia
and not transmit any sort of personal or
confidential information. While this solu-
tion was not too inconvenient for personal
use, it would certainly complicate any sort
of professional communication. Unfortu-
nately, the way the cyber-world is evolving,
professionally we may be facing these sorts
of complications soon.
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44 NOVEMBER 2017