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October 15, 2010
Lawyers have a duty to scrub electronics before disposal

Have you texted a client from your cell phone? Used a copying service or business services at a hotel to replicate client documents? Do you do business via an iPhone, Blackberry, laptop, or iPad?

Then you may have an extra step or two to take when disposing of such equipment, according to a new proposed ethics opinion.

The Professional Ethics Committee addressed that issue and the confidentiality a lawyer owes to a deceased client at its September 24 meeting.

The committee approved two proposed advisory opinions, both of which were referred by the Bar Board of Governors. Both opinions are reproduced in their entirety in an official notice in this News.

PAO 10-2 addressed computerized equipment that could retain confidential information when discarded, sold, or recycled. Such equipment includes computers, scanners, and copiers (which have hard drives that retain electronic copies of processed documents), cell phones, personal digital assistants, fax machines, memory cards, and other storage media that can accumulate such records. The opinion also noted that lawyers using commercial copying services or copying services at a hotel can expose confidential information because those machines likely have hard drives that can capture that information.

“If a lawyer chooses to use these devices that contain storage media, the lawyer has a duty to keep abreast of changes in technology to the extent that the lawyer can identify potential threats to maintaining confidentiality,” the proposed opinion said. “The lawyer must learn such details as whether the device has the ability to store confidential information, whether the information can be accessed by unauthorized parties, and who can potentially have access to the information. The lawyer must also be aware of different environments in which confidential information is exposed, such as public copy centers, hotel business centers, and home offices. The lawyer should obtain enough information to know when to seek protection and what devices must be sanitized, or cleared of all confidential information, before disposal or other disposition. Therefore, the duty of competence extends from the receipt, i.e., when the lawyer obtains control of the device, through the device’s life cycle, and until disposition of the device, including after it leaves the control of the lawyer.”

Although not covered by an ethics opinion, the proposed opinion also noted that a lawyer could face legal issues if disposed equipment or memory devices have personal information, such as medical records, Social Security numbers, or criminal arrest records.

Besides the lawyer’s own action, the lawyer must supervise nonlawyer personnel who use computers and computerized equipment to protect confidential matters.

The opinion also said the lawyer must get “adequate assurances” that discarded or leased machinery has been stripped of sensitive records.

“The lawyer has an affirmative obligation to ascertain that the sanitization has been accomplished, whether by some type of meaningful confirmation, by having the sanitization occur at the lawyer’s office, or by other similar means,” the opinion said.

PAO 10-3 examined the ethical obligations of an attorney when a personal representative, beneficiaries, or heirs-at-law request confidential information about the attorney’s deceased client.

The opinion, noting that the duty of confidentiality continues after a client’s death, said the attorney can disclose information that furthers the client’s wishes or interests.

“Thus, if a personal representative asks for confidential information relating to a decedent’s estate plan, and the decedent’s lawyer determines that disclosure of the information would aid in the proper distribution of the decedent’s estate according to the decedent’s wishes, the lawyer may properly disclose the information to the personal representative, unless the decedent specifically required that the information be kept confidential,” the opinion said.

Information that would have to be kept confidential would include any information requested by the client, even if related to an estate. Information from work unrelated to the estate ordinarily also would have to be kept confidential.

The opinion said a lawyer may only divulge such information upon the order of a court.

“Doubts about whether information should be voluntarily disclosed should be resolved in favor of nondisclosure,” the opinion concluded.

Aside from the official notice, complete texts of the proposed opinions can be found on the Bar’s website, www.floridabar.org.

[Revised: 10-30-2014]