Rules 1.1 and 1.6 impose a duty to act competently to safeguard against the inadvertent or unauthorized disclosure of information related to the representation of a client. I’ve blogged often on encryption, cloud storage, and other tech issues that impact the duty.
But I’ve also blogged that the most recent sanctions involving Rule 1.6 have nothing to do with hackers or technology. As I wrote:
“To wit: the last three sanctions for violations of Rule 1.6 in Vermont were imposed:
- for leaving a client file in the hallway for the client to pick up;
- for disclosing to a new client too much information about an old client’s case; and
- for selling a work computer.
My guess is that far more lawyers have put information related to a representation at risk by leaving files or computers in restaurants or airport waiting areas than by sending unencrypted emails or storing information in the cloud.”
The lesson: don’t forget about the “simple” steps you can take to safeguard against the inadvertent disclosure of client information.
Today’s question is whether disabling your e-mail account’s “autocomplete” function is one of those steps.
The question arises from the evolving saga of one of the country’s more prestigious law firm’s inadvertent disclosure to the Wall Street Journal of confidential & privileged information. The matter involves Pepsi, an SEC investigation, and a Russian dairy company named Wimm-Bill-Dann. Above the Law’s Joe Patrice has the story here.
(As an aside, I wonder if the All-England Tennis Club has sued Wimm-Bill-Dan to change its name? Or, perhaps, the company is the official dairy product provider for The Championships.)
Back to the story.
Patrice suggests that an e-mail snafu may have caused the inadvertent disclosure :
“The memo, discussing a subpoena Smith received, was sent to the Wall Street Journal in an email including a number of other attorneys working on the matter. Given the circumstances, it’s safe to say someone’s inline autocomplete got the better of them. For any attorneys using a mailbox with that feature… maybe turn it off. On the plus side, as an efficiency aid, it saves you a few seconds every day. On the downside, one day it’ll send privileged and potentially career-ending documents to the press. Weigh those out and do whatever you think is best. Don’t worry, you can continue this story after you go into your mail preferences.”
Very interesting point.
The duty to act competently to safeguard client information includes a duty to take reasonable precautions against inadvertent disclosure. Is disabling autocomplete a reasonable precaution? Stated differently, is it unreasonable not to disable it?
I don’t know. But, I do know this.
My name is Michael Kennedy and my e-mail address is email@example.com. Many of you know Judge Michael Kainen. Prior to being appointed to the bench, Judge Kainen was the Windsor County State’s Attorney. I don’t remember whether it happened when Judge Kainen was a prosecutor or after he’d been appointed. However, once, a lawyer who intended to e-mail a confidential ethics inquiry to me accidentally sent it to Judge Kainen.
Hint: state’s attorneys and judges also have “vermont.gov” e-mail addresses.
To: michael.k _________