ABA Model Rules of Professional Conduct
A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
… [Rule 1.6(c)] requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.
The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure.
Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to,
- the sensitivity of the information,
- the likelihood of disclosure if additional safeguards are not employed,
- the cost of employing additional safeguards,
- the difficulty of implementing the safeguards, and
- the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).
When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients.
Selected States’ Approaches
As technology advances occur, lawyers should periodically review security measures in place to ensure that they still reasonably protect the security and confidentiality of the clients’ documents and information.State Bar of Arizona
The obligation to preserve client confidences extends beyond merely prohibiting an attorney from himself making disclosure of confidential information without client consent (except under such circumstances described in RPC 1.6). It also requires that the attorney take reasonable affirmative steps to guard against the risk of inadvertent disclosure.New Jersey Advisory Committee on Professional Ethics
A lawyer must act competently to safeguard against inadvertent or unauthorized disclosure of confidential client information. While a lawyer is not strictly liable for any breach of client confidentiality, his duty includes reasonable precautions to prevent both accidental and unauthorized disclosure.
…the reasonableness and competence of the lawyer’s actions must be judged in the context of the relative sensitivity of the particular confidential information or communication at stake.State Bar of Nevada