Protecting client secrets in an electronic world

By Diane Karpman

Karpman

Confidentiality is the hallmark of the legal profession. In Swidler & Berlin v. United States (1998) 524 U.S. 399, Kenneth Starr, then special prosecutor and now dean of Pepperdine University School of Law, sought the release of lawyer notes from the final meeting of the deceased Vince Foster and his attorney. The Supreme Court unanimously refused. When the law firm that represented Lizzie Bordon, the alleged ax murderess (not the rock band), wanted to donate her file to the Fall River Historical Society, the Massachusetts bar opined that even though she was long deceased, the file was still confidential.

Recently, when the media reported that venerable Iron Mountain misplaced electronic personal data of about 600,000 employees of Time Warner, some of us gasped for air. Iron Mountain, a third-party security storage provider (that ferries information around in white Econoline vans), is employed by quite a few law firms, and more than half of their customers are Fortune 500 companies. Third-party or off-site storage facilities are ubiquitous and used for storage of the reams of paper or digital information we are generating and maintaining. Third-party storage facilities could be internet service providers like AOL or the orange public storage on the corner. Iron Mountain adopted a sort of “gee whiz” response and explained that it loses only about 12 cargoes out of about 5 million pickups. Twelve may be too many for confidentiality-obsessed and obligated lawyers, or physicians with their HIPPA-enriched duties.

But wait, if you really want to join other lawyers in our collective paranoia, according to the New York Times (Dec. 12, 2004), passwords and firewalls will no longer protect you and your client’s electronic secrets. It is now possible to eavesdrop on keystrokes and determine what is being communicated. A parabolic microphone 50 feet away can decipher the information, even with background noise. A nefarious person could walk by a typing carousel where a critical document was being transcribed and record the keystrokes with a cell phone.

If you have inadvertently dialed your cell number, then you know that a cell phone can become a recording device, and a “voicemail” message could be sent that could translate the keystrokes. All of this suggests that it may be a good risk management tool to obtain client consent, in your fee agreement, to electronic storage of clients’ information, and the use of e-mail to transmit/communicate with them.

In order to limit your future obligations regarding hard copies of client files, look at Los Angeles County Bar Association Ethics Opinion 475 (http://lacba.org/showpage.cfm?pageid=427) for some guidelines involving prospective client file “retention policies.”

Finally, the Batonnier (president) of the Paris Bar Association, whose office is on the Ile de France, right in the middle of the Seine (which is possibly the best office location in the world) has on his bookshelf the actual fan that Marie Antoinette handed to her lawyers (in gratitude) as she stepped up to the guillotine.

• Legal ethics expert Diane Karpman can be reached at 310-887-3900 or at karpethics@aol.com.