Tech gurus around the country have been tweeting about the new ABA opinion like it’s some sort of revelation that was brought down from a mountain on stone tablets. I don’t know why everyone is going up in arms about this. Here’s what I think. The ABA is (a) on point (as usual), and (b) 7 years too late (as usual). The opinion is 11 pages of stuff that ethics professionals and various states have been shouting for almost a decade. If you’re a lawyer and you didn’t know the contents of Opinion 477 already, you should be embarrassed.
After all 11 pages, it comes down to the last two sentences of the opinion. They basically say that lawyers need to take special security precautions to protect client information if you’re required to do so by agreement (really, you didn’t know that?), by law (someone needed to issue an opinion to tell you that you need to abide by the law?), or when the nature of the information requires a higher degree of security (teachers like me have been preaching that for YEARS). Opinion 477 at 11.
It takes everything in my being not to say, “…duh.”
Of course you need to consider the sensitivity of the information when determining how you communicate that information to your client. The State of California told us that….in 2010 (go look at Formal Opinion 2010-179. And California did it in only 7 pages). The ABA even told us that in their revised rules…in 2012. But now, in 2017, they finally get around to writing this opinion?
All of the information in this opinion is important. But it should have been issued years ago. “But wait,” you might protest, “Opinion 477 gives some factors to consider.” Listen— if the seven precautionary recommendations that they list in this opinion are new to you, then here’s a newsflash: You haven’t been meeting your duty of competence for years. Maybe in their next opinion they’ll give us some more useful tech advice like, “To rename a file, type the following command after the C:\…” Seriously, this is all coming to us a bit late.
Here’s another helpful nugget from Op. 477: It reminds us that the rules “may require a lawyer to discuss security safeguards with clients.” Opinion 477 at 5. People, technology issues like that should be a part of every lawyer’s initial conversation with their client…and it should have been that way already for years. If you haven’t been talking about it, then you’re in borderline malpractice territory. It also means that you haven’t been listening because every respectable ethics teacher has been shouting about that for almost a decade.
Here’s what I would have tweeted about this opinion (if I had more than 140 characters):
To the lawyers: If any of this is new to you, stop what you’re doing and (a) chastise yourself for being 10 years behind the curve and (b) read the opinion. My gut tells me that there will be a total of 3 lawyers who are surprised by the contents of Opinion 477.
To the ABA: Move quicker and talk less. You’ll serve all lawyers better.