“Reasonable Efforts” to Protect Client Information From Cybersecurity Risks

A frequent subject of Ethics Hotline calls is what a lawyer can/must do to protect confidential client information from cybersecurity risks.  In 2014, the Wyoming Supreme Court amended W.R.P.C. 1.6 (client confidentiality) to add subpart (c): “A lawyer shall make reasonable efforts to prevent the unintended disclosure of, or unauthorized access to, information relating to the representation of a client.”

What are “reasonable efforts”? ABA Formal Opinion 477R, issued in 2017, represents the most authoritative treatment of this issue. According to the opinion, for most client matters, “standard security methods with low to reasonable costs to implement, may be sufficient to meet the reasonable-efforts standard to protect client information from inadvertent and unauthorized disclosure.”  The Formal Opinion concludes that unencrypted email for routine communication with clients poses no greater risk of interception or disclosure than other non-electronic forms of communication, “presuming the lawyer has implemented basic and reasonably available methods of common electronic security measures.  Thus, the use of unencrypted routine email generally remains an acceptable method of lawyer-client communication.”

However, in the 18 months since Formal Opinion 477R was issued, law firms have experienced a dramatic rise in email hacks, which often go undetected for weeks or even longer.  In order to help its members minimize the risk of cybersecurity threats, the Wyoming State Bar will soon launch a new member benefit which will provide state-of-the-art e-mail encryption for members at a substantially discounted cost. Identillect, a secure e-mail encryption software company that focuses on the legal industry, offers easy-to-use encryption software with the latest safeguards against e-mail hacks. Identillect subscribers will be able to restrict e-mail forwarding, printing and downloading, and will be able to retract an e-mail at any time. Identillect software integrates directly with Outlook, Outlook 365, Gmail and other e-mail applications and is fully mobile-optimized.  Watch for the launch of this important member benefit in the near future.

Mark W. Gifford
Bar Counsel
(307) 432-2106

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