Professional Ethics Commission
Topics: Client Confidences: Confidential firm data held electronically and handled by technicians for third-party vendors
From the opinion:
“[A]n attorney may utilize transcription and computer server backup services remote from both the lawyer’s physical office and the lawyer’s direct control or supervision without violating the attorney’s ethical obligation to maintain client confidentiality.
As Rule 3.6(h)(2) makes clear…the primary responsibility for file integrity, maintenance, disposition, and confidentiality rests with the attorney employed by the client. […]
Rule 3.6(h)(2) implies that lawyers have a responsibility to train, monitor, and discipline their non-lawyer staff in such a manner as to guard effectively against breaches of confidentiality…
Clearly, when employing any outside contractor to perform law-related services, the lawyer does not directly train, monitor, and discipline the employees of the service provider; however, the lawyer retains the obligation to ensure that appropriate standards concerning client confidentiality are maintained by the contractor. The precise parameters of what constitutes ‘appropriate standards’ are not defined in the rules or opinions, but are based on reasonable efforts to prevent the disclosure of confidential information.
At a minimum, the lawyer should take steps to ensure that the company providing transcription or confidential data storage has a legally enforceable obligation to maintain the confidentiality of the client data involved. [Reference to HIPAA regulations]”
- Code of Professional Responsibility of the Maine Bar Rules 3.6(a), Rule 3.6(h)(1), Rule 3.6(h)(2)
- Privacy and Security Rules of the federal Health Insurance Portability and Accountability Act (“HIPAA”), 45 C.F.R.
- Part 164 & the Security Rule, 45 C.F.R. Â§164.302-318
(the latter two as detailed examples of standards intended to protect the confidentiality)
- Maine Professional Ethics Commission Opinion #74
- Maine Professional Ethics Commission Opinion #134 (9/21/93)
- American Bar Association Formal Opinion 95-398
- New York State Bar Ass’n Committee on Prof’l Eth. Op. 749
- New York State Bar Opinion 782
- Florida Bar Opinion 06-2
- Alabama Disciplinary Commission Opinion 2007-02
- New Jersey Advisory Committee on Professional Ethics Opinion 701
The full text is available at http://www.maine.gov…