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Friday, November 05, 2010

Proposed Florida Bar Opinion Requires Lawyers to Scrub Hard Drives

A recent proposed advisory opinion by the Florida Bar warns lawyers of their ethical duty to see that old hard drives are sanitized to protect client information from falling into the hands of unauthorized third parties.  See Proposed Opinion 10-2 (Sept 24, 2010) found at$FILE/10-02%20PAO.pdf?OpenElement

Hard drives or memory sticks are used in copying and fax machines as well as computers.  Lawyers that lease copiers or dispose of these machines without sanitizing the hard drive leave client information vulneralble to the mischief of third parties that mine and harvest such information to commit identity theft.  The proposed opinion would require lawyers to obtan assurances from third party vendors that the hard drive will be sanitized to protect client information.

It remains to be seen how a lawyer can exercise control over third party vendors and whether lawyers should be disciplined for failing to obtain that assurance from the vendor.  For example, what assurance can a lawyer get when he asks a hotel clerk to make copies of a client's documents?  ABA Model Rule 5.3 was not written to address a lawyer's responsibility for conduct of non-lawyers that are not under the direct supervisory authority of the lawyer.  This is why ethical breaches by persons to whom a task or matter has been outsourced by a lawyer, and the outsourcing lawyer's exposure under Rule 5.1 or 5.3 is a problematic issue.  A lawyer does not exercise supervisory authority over third parties not employed by the lawyer or his/her firm.

The opinion also raises a question whether lawyers should be subject to discipline if a third party finds the lawyer's laptop, flash drive, cell phone or other device containing client information that is not encrypted or password protected.  While it is one thing to advise lawyers on best practices regarding the use of technology, it is an entirely different matter to hold a lawyer subject to discipline for not adopting these best practices.

It will be interesting to see how this opinion reads when it is finally  adopted.

Wednesday, November 03, 2010

Prosecutors May Advise Police to Communicate with Represented Defendant

Effective November 1, 2010, the Supreme Court of Virginia approved the Virginia State Bar’s Rule 4.2 Task Force’s proposed amendment to Comment [5] of Rule 4.2 of the Rules of Professional Conduct to address the situation in which a defendant who is in custody, formally charged, and represented by counsel waives his rights under Miranda v. Arizona and wants to give a statement to a law enforcement officer without his counsel present.

The question addressed by the task force was: “If the law enforcement officer seeks legal advice from a commonwealth’s attorney regarding whether the officer may obtain a statement from the defendant under these circumstances, may the commonwealth’s attorney advise the police officer without violating Rule 4.2?

Rule 4.2 had previously prohibited a lawyer from communicating with a person the lawyer knew to be represented by counsel unless the counsel for the represented person consented or the communication was authorized by law.

Rule 8.4 (a) states that a lawyer cannot violate a professional rule through the agency or actions of another. A reading of the rule led to the conclusion that the commonwealth’s attorney could not ethically advise law enforcement officers to proceed with the custodial interview without notice to or consent from the accused’s lawyer.

The task force determined that the defendant’s waiver of his right to have his lawyer present when the accused desires to talk to a law enforcement officer presents a constitutional legal issue on which the commonwealth’s attorney should be permitted to give advice without fear of violating the cited rules. The amendment to Rule 4.2, Comment [5] clarifies that the commonwealth’s attorney can advise the law enforcement officer regarding the legality of an interrogation or the legality of other investigative conduct. The amendment to Comment [5] does not, however, authorize the commonwealth’s attorney to script or mastermind the police’s interrogation of the defendant.