In my view, Rules 1.1 and 1.6 impose a duty to act competently to prevent the unauthorized access to or disclosure of information relating to the representation of a client. I’ve blogged on this issue many times:
- Protecting Client Data
- Encryption & The Evolving Duty to Safeguard Client Information
- The Cloud: What are Reasonable Precautions?
Next week, I’m presenting two seminars at the YLD Mid-Winter Thaw in Montreal. In the first, I’m on a panel with Judge Hayes and the Judiciary’s Andy Stone. Judge Hayes and Andy will introduce lawyers to the Judiciary’s new case management system. My job will be to chime in on ethics issues that might arise with electronic filing. My thoughts will focus on tech competence.
Imagine this scenario: whether in a filing or a communication to opposing counsel, a lawyer includes a PDF. Prior to transmission, the lawyer redacted the PDF to keep certain information confidential. Alas, the lawyer did not properly redact the PDF. By highlighting the redacted the portions and pasting them into a new document, opposing counsel, or anyone else with access to the PDF, can discover what the lawyer intended to obscure. The filing is here.
Did the lawyer take reasonable precautions to protect the information? Was it a one-time mistake that doesn’t rise to the level of an ethics violation? What if it was information that the court had ordered remain confidential and now is public?
Earlier this week, lawyers for Paul Manafort, President Trump’s former campaign chair, filed a response to special counsel Robert Mueller’s allegation that Manafort lied to Mueller’s investigators. Due to what the ABA Journal described as a “technical oversight,” the filing was not properly redacted. As such, the media was able to discover that Manafort is accused of sharing polling data with a Russian business person. The story has been covered by the ABA Journal, BuzzFeed, Fox News, and the Washington Post.
(Update at 1:16 PM on January 10: Above The Law’s Joe Patrice has a great recap here.)
Go back to the scenario I posited above: what if that’s you in a Vermont case? What if you meant to redact a client’s proprietary information, or a witness’s mental health records, or a confidential informant’s identity? What if you didn’t do it right?
Jason Tashea writes for the ABA Journal. Today, he posted How to redact a PDF and protect your clients. If this is an area of tech competence that interests or concerns you, I’d suggest giving Jason’s post a read.