Nathan M. Crystal, Ethics Watch: Technology and Confidentiality (Part II), South Carolina Lawyer 12 (Nov. 2011)

The basic obligation of lawyers with regard to confidential client information is clear: lawyers must take reasonable steps to protect the confidentiality of such information. South Carolina Rule of Professional Conduct (SCRPC) 1.6, comment 18 states: “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.” However, it is often difficult to determine what is reasonable and to implement reasonable precautions when using modern technology.

This article addresses (1) outsourcing and “the cloud,”, (2) use of social networking sites, and (3) dealing with confidentiality breaches.

The article also discusses one way of addressing these issues, development of law firm policies on these issues and inclusion in the firm’s engagement agreements of a provision summarizing the firm’s policies with regard to the use of technology, seeking client consent to those policies, and inviting clients to inform their lawyers if they wish the firm to use different approaches, if feasible.

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Related document: Nathan M. Crystal, Ethics Watch: Technology and Confidentiality (Part I), South Carolina Lawyer 12 (Sept. 2011)