ABA Formal Opinion 483

Topic: Lawyers’ Obligations After an Electronic Data Breach or Cyberattack   “Model Rule 1.4 requires lawyers to keep clients “reasonably informed” about the status of a matter and to explain matters “to the extent reasonably necessary to permit a client to make an informed decision regarding the representation.” Model Rules 1.1, 1.6, 5.1 and 5.3, […]

Federal Trade Commission v. Boehringer Ingelheim Pharmaceuticals, Inc.

On June 19, 2018, the Court of Appeals for the District of Columbia, provided an important reminder on when a communication can be considered privileged. According to the decision, a document is privileged depending on the purpose of the communications at issue. Before producing documents in a litigation, to maintain attorney-client privilege, counsel should determine […]

ABA Formal Opinion 480

American Bar Association Standing Committee on Ethics and Professional Responsibility   Topic: Confidentiality Obligations for Lawyer Blogging and Other Public Commentary   “Lawyers who blog or engage in other public commentary may not reveal information relating to a representation, including information contained in a public record, unless authorized by a provision of the Model Rules.” […]

ABA Formal Opinion 477

American Bar Association Standing Committee on Ethics and Professional Responsibility   Topic: Securing Communication of Protected Client Information “A lawyer generally may transmit information 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 […]

Colorado Formal Opinion 130

Colorado Bar Association Ethics Committee   Topic: lawyer’s posting or sharing of materials   Conclusion of the Committee: “In many situations, making information obtained in the course of representing a client public is helpful, either to other lawyers or to educate the public. But client confidences must be respected. When a client gives informed consent to […]

Use of a file-sharing site without password was found to constitute a waiver of attorney-client privilege and work product protection

On February 9, 2017, a Virginia District Court deemed that the posting of privileged information on the web without protection results in a waiver. In this case, Harleysville Insurance Company, (“Harleysville”) sued the defendants, Holding Funeral Home, Inc. seeking a declaratory judgment that it did not owe them fire loss claim. (Incidentally, the District Court […]

New York County Lawyers’ Association Ethics Opinion 749

Committee on Professional Ethics Topic: “A lawyer’s ethical duty of technological competence with respect to the duty to protect a client’s confidential information from cybersecurity risk and handling e-discovery when representing clients in a litigation or government investigation”   From the digest: A lawyer’s ethical duty of competence extends to the manner in which he […]

Privilege Considerations in Cyber Incident Response

Interesting blog authored by Bart Huffman and Charles Salmon of Locke Lord LLP (see here) discusses some legal issues generated by cyber-security incidents. The blog specifically deals with the issue of whether non-public written records concerning the breach (e.g. minutes of meetings, communications among the response team, etc.) may be privileged or protected under the work product doctrine. For more information, […]