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Ethics Committee Opinion 701 Advisory Committee on Professional Ethics Electronic Storage and Access of Client Files

Ethics Committee Opinion 701 Advisory Committee on Professional Ethics Electronic Storage And Access of Client Files


Advisory Committee on Professional Ethics

Appointed by the Supreme Court of New Jersey


The inquirer asks whether the Rules of Professional Conduct permit him to make use of an

electronic filing system whereby all documents received in his office are scanned into a digitized

format such as Portable Data Format (“PDF”). These documents can then be sent by email, and as the

inquirer notes, “can be retrieved by me at any time from any location in the world.” The inquirer notes

that certain documents that by their nature require retention of original hardcopy, such as wills, and

deeds, would be physically maintained in a separate file.

In Opinion 692, we set forth our interpretation of the term “property of the client” for purposes

of RPC 1.15, which then triggers the obligation of a lawyer to safeguard that property for the client.

“Original wills, trusts, deeds, executed contracts, corporate bylaws and minutes are but a few examples

of documents which constitute client property.” 163 N.J.L.J. 220, 221 (January 15, 2001) and 10 N.J.L.

154 (January 22, 2001). Such documents cannot be preserved within the meaning ofRPC 1.15 merely

by digitizing them in electronic form, and we do not understand the inquirer to suggest otherwise, since

he acknowledges his obligation to maintain the originals of such documents in a separate file.

On the other hand, we also noted in Opinion 692 that a client file will likely contain other

documents, such as correspondence, pleadings, memoranda, and briefs, that are not “property of the

client” within the meaning of RPC 1.15, but that a lawyer is nevertheless required to maintain at least

for some period of time in order to discharge the duties contained in RPC 1.1 (Competence) and RPC

1.4 (Communication), among others. While traditionally a client file has been maintained through

paper records, there is nothing in the RPCs that mandates a particular medium of archiving such

documents. The paramount consideration is the ability to represent the client competently, and given

the advances of technology, a lawyer’s ability to discharge those duties may very well be enhanced by

having client documents available in an electronic form that can be transmitted to him instantaneously

through the Internet. We also note the recent phenomenon of making client documents available to the

client through a secure website. This also has the potential of enhancing communications between

lawyer and client, and promotes the values embraced in RPC 1.4.

With the exception of “property of the client” within the meaning of RPC 1.15, therefore, and

with the important caveat we express below regarding confidentiality, we believe that nothing in the

RPCs prevents a lawyer from archiving a client’s file through use of an electronic medium such as

PDF files or similar formats. The polestar is the obligation of the lawyer to engage in the

representation competently, and to communicate adequately with the client and others. To the extent

that new technology now enhances the ability to fulfill those obligations, it is a welcome development.

This inquiry, however, raises another ethical issue that we must address. As the inquirer notes,

the benefit of digitizing documents in electronic form is that they “can be retrieved by me at any time

from any location in the world.” This raises the possibility, however, that they could also be retrieved

by other persons as well, and the problems of unauthorized access to electronic platforms and media

(i.e. the problems posed by “hackers”) are matters of common knowledge. The availability of sensitive

client documents in an electronic medium that could be accessed or intercepted by unauthorized users

therefore raises issues of confidentiality under RPC 1.6.

The obligation to preserve client confidences extends beyond merely prohibiting an attorney

from himself making disclosure of confidential information without client consent (except under such

circumstances described in RPC 1.6). It also requires that the attorney take reasonable affirmative

steps to guard against the risk of inadvertent disclosure. Thus, in Opinion 692, we stated that even

when a closed client file is destroyed (as permitted after seven years), “[s]imply placing the files in the

trash would not suffice. Appropriate steps must be taken to ensure that confidential and privileged

information remains protected and not available to third parties.” 163 N.J.L.J. 220, 221 (January 15,

2001) and 10 N.J.L 154 (January 22, 2001). Similarly, in ACPE Opinion 694 and CAA Opinion 28

(joint opinion), we joined with the Committee on Attorney Advertising in finding that two separate

firms could not maintain shared facilities where “the pervasive sharing of facilities by the two separate

firms as described in the Agreement gives rise to a serious risk of a breach of confidentiality that their

respective clients are entitled to.” 174 N.J.L.J. 460 and 12 N.J.L. 2134 (November 3, 2003).

And in Opinion 515, we permitted two firms to share word processing and computer facilities

without becoming “office associates” within the meaning of R. 1:15-5(b), but only after noting that

“the material relating to individual cases of each attorney is maintained on separate ‘data’ disks used

only by their respective secretaries and stored (while not in use) in each of their separate offices.” 111

N.J.L.J. 392 (April 14, 1983).

We stress that whenever attorneys enter into arrangement as outlined herein, the

attorneys must exercise reasonable care to prevent the attorneys employees and

associates, as well as others whose services are utilized by the attorney, from disclosing

or using confidences or secrets of a client.

The attorneys should be particularly sensitive to this requirement and establish office

procedures that will assure that confidences or secrets are maintained.

Id.

The critical requirement under RPC 1.6, therefore, is that the attorney “exercise reasonable

care” against the possibility of unauthorized access to client information. A lawyer is required to

exercise sound professional judgment on the steps necessary to secure client confidences against

foreseeable attempts at unauthorized access. “Reasonable care,” however, does not mean that the

lawyer absolutely and strictly guarantees that the information will be utterly invulnerable against all

unauthorized access. Such a guarantee is impossible, and a lawyer can no more guarantee against

unauthorized access to electronic information than he can guarantee that a burglar will not break into

his file room, or that someone will not illegally intercept his mail or steal a fax.

What the term “reasonable care” means in a particular context is not capable of sweeping

characterizations or broad pronouncements. But it certainly may be informed by the technology

reasonably available at the time to secure data against unintentional disclosure. Obviously, in this area,

changes in technology occur at a rapid pace. In 1983, for instance, when Opinion 515 was published,

the personal computer was still somewhat of a novelty, and the individual floppy disk was the

prevailing data storage device. The “state of the art” in maintaining electronic security was not very

developed, but the ability to prevent unauthorized access by physically securing the floppy disk itself

satisfied us that confidentiality could be maintained. By implication, at the time we were less

accepting of data stored on a shared hard drive, even one that was partitioned to provide for individual

private space for use by different firms, because of the risk of breach of confidentiality under

prevailing technology.

We are of course aware that floppy disks have now become obsolete, and that it is exceedingly

unlikely in this day and age that different law firms would attempt to share hard drive space on a

conventional desktop computer, given the small cost of such computers in today’s market. New

scenarios have arisen, however. It is very possible that a firm might seek to store client sensitive data

on a larger file server or a web server provided by an outside Internet Service Provider (and shared

with other clients of the ISP) in order to make such information available to clients, where access to

that server may not be exclusively controlled by the firm’s own personnel. And in the context

originally raised by the inquirer, it is almost always the case that a law firm will not have its own

exclusive email network that reaches beyond its offices, and thus a document sent by email will very

likely pass through an email provider that is not under the control of the attorney.

We are reluctant to render an specific interpretation of RPC 1.6 or impose a requirement that is

tied to a specific understanding of technology that may very well be obsolete tomorrow. Thus, for

instance, we do not read RPC 1.6 or Opinion 515 as imposing a per se requirement that, where data is

available on a secure web server, the server must be subject to the exclusive command and control of

the firm through its own employees, a rule that would categorically forbid use of an outside ISP. The

very nature of the Internet makes the location of the physical equipment somewhat irrelevant, since it

can be accessed remotely from any other Internet address. Such a requirement would work to the

disadvantage of smaller firms for which such a dedicated IT staff is not practical, and deprive them and

their clients of the potential advantages in enhanced communication as a result.

Moreover, it is not necessarily the case that safeguards against unauthorized disclosure are

inherently stronger when a law firm uses its own staff to maintain a server. Providing security on the

Internet against hacking and other forms of unauthorized use has become a specialized and complex

facet of the industry, and it is certainly possible that an independent ISP may more efficiently and

effectively implement such security precautions.

We do think, however, that when client confidential information is entrusted in unprotected

form, even temporarily, to someone outside the firm, it must be under a circumstance in which the

outside party is aware of the lawyer’s obligation of confidentiality, and is itself obligated, whether by

contract, professional standards, or otherwise, to assist in preserving it. Lawyers typically use

messengers, delivery services, document warehouses, or other outside vendors, in which physical

custody of client sensitive documents is entrusted to them even though they are not employed by the

firm. The touchstone in using “reasonable care” against unauthorized disclosure is that: (1) the lawyer

has entrusted such documents to an outside provider under circumstances in which there is an

enforceable obligation to preserve confidentiality and security, and (2) use is made of available

technology to guard against reasonably foreseeable attempts to infiltrate the data. If the lawyer has

come to the prudent professional judgment he has satisfied both these criteria, then “reasonable care”

will have been exercised.1

1

In the specific context presented by the inquirer, where a document is transmitted to him by email

over the Internet, the lawyer should password a confidential document (as is now possible in all

common electronic formats, including PDF), since it is not possible to secure the Internet itself against

third party access.


Kenneth Vercammen was the Middlesex County Bar Municipal Court Attorney of the Year
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Kenneth Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week for litigation and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer.

He is chair of the Elder Law Committee of the American Bar Association General Practice Division. He is also Editor of the ABA Estate Planning Probate Committee Newsletter and also the Criminal Law Committee newsletter. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award. And past Winner "General Practice Attorney of the Year" from the NJ State Bar Association. He is a 22 year active member of the American Bar Association. He is also a member of the ABA Real Property, Probate & Trust Section.

He established the NJlaws website which includes many articles on Elder Law. Mr. Vercammen received his B.S., cum laude, from the University of Scranton and his J.D. from Widener/Delaware Law School, where he was the Case Note Editor of the Delaware Law Forum, a member of the Law Review and the winner of the Delaware Trial Competition.

RECENT SPEAKING ENGAGEMENTS ON WILLS, ELDER LAW, AND PROBATE

Edison Adult School -Wills, Elder Law & Probate- 2007, 2006, 2005, 2004, 2003, 2002 [inc Edison TV], 2001, 2000,1999,1998,1997
Nuts & Bolts of Elder Law - NJ Institute for Continuing Legal Education/ NJ State Bar ICLE/NJSBA 2008, 2007, 2006, 2005, 2004, 2003, 2002, 2000, 1999, 1996
Elder Law and Estate Planning- American Bar Association Miami 2007
Elder Law Practice, New Ethical Ideas to Improve Your Practice by Giving Clients What They Want and Need American Bar Association Hawaii 2006
South Plainfield Seniors- New Probate Law 2005, East Brunswick Seniors- New Probate Law 2005
Old Bridge AARP 2002; Guardian Angeles/ Edison 2002; St. Cecilia/ Woodbridge Seniors 2002;
East Brunswick/ Halls Corner 2002;
Linden AARP 2002
Woodbridge Adult School -Wills and Estate Administration -2001, 2000, 1999, 1998, 1997, 1996
Woodbridge Housing 2001; Metuchen Seniors & Metuchen TV 2001; Frigidare/ Local 401 Edison 2001; Chelsea/ East Brunswick 2001, Village Court/ Edison 2001; Old Bridge Rotary 2001; Sacred Heart/ South Amboy 2001; Livingston Manor/ New Brunswick 2001; Sunrise East Brunswick 2001; Strawberry Hill/ Woodbridge 2001;
Wills and Elder Law - Metuchen Adult School 1999,1997,1996,1995,1994,1993
Clara Barton Senior Citizens- Wills & Elder Law-Edison 2002, 1995
AARP Participating Attorney in Legal Plan for NJ AARP members 1999-2005

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