Confidentiality in the Electronic World

Abstract

The Colorado Rules of Professional Conduct (the “Colo. RPC”), as interpreted in the comments to the Colo. RPC, the courts and the Ethics Committee of the Colorado Bar Association, govern lawyers practicing law in Colorado, and in some cases are impacted even when Colorado lawyers are not practicing law. Maintaining the confidentiality of client matters under Rule 1.6 of the Colo. RPC remains as important in electronic communications in the 21st century as it has in decades past. This is not only an issue in Colorado, but it is also an issue under Rule 1.6 of the American Bar Association’s Model Rules of Professional Conduct and the comparable rules in all other jurisdictions.

Among the confidentiality obligations that should concern attorneys are the powers of the U.S. Customs and Border Patrol agents when attorneys are returning to the United States from abroad - and their power to inspect items returning to the United States - including electronic devices. While the US CBP may recognize claims of attorney-client privilege in most cases, the same may not be true for customs agents when entering into other countries, and attorneys need to be concerned when leaving or returning to the United States.

As set forth in news reports, law enforcement in some jurisdictions routinely insist on access to the electronic devices of persons they arrest, and obtain search warrants to back their demands up. Is this a law enforcement tool, an invasion of privacy, or both?.

Electronic communications simply make it easier to breach the obligations of confidentiality, and lawyers need to be aware of the potentials for breach. The attorney’s obligations to understand the technology to prevent inadvertent breaches of confidentiality are important aspects of the requirements.

Keywords: confidentiality, electronic communications, ransomware, ethics, professional responsibility

JEL Classification: K10, K20