The Digital Milieu: A Lawyer’s Duty of Competence and Protection

By John Mounier, Elder Protection Attorneys

Mickey Haller sat in the back seat of his Lincoln Town Car on his way to the office of his murdered criminal defense attorney colleague to take possession of his dead colleague’s client files. The murdered colleague had included Haller in his standard representation agreements as his “second,” to stand in when necessary and to protect the attorney client privilege.

In the good old pre-digital, pre-cloud days (2008), Mickey Haller, the “Lincoln Lawyer” in Michael Connelly’s courtroom novels, had a simpler task helping the clients of a dead or disabled colleague than digital milieu lawyers. Haller merely had to remove folders from file cabinets, read the documents and prepare to represent a capital murder defendant two weeks later.

Compare Haller’s 2008 situation to an attorney trying to help the clients of a disabled or dead digital age lawyer with a virtual office, a paperless practice and a file cabinet in the cloud.

Competence in the digital milieu is a requirement of a modern lawyer. See California Rules of Professional Conduct (“CPRC”) Rule 3-110; and, CA Ethics Opinion 2015-193. Likewise, Cal Ethics Opinion 2010-179 requires a lawyer to evaluate the security of software applications. Cal Ethics Opinion 2012 – 184 mandates virtual law office data security.

Of course, the modern lawyer must, as always, insure privacy and confidentiality of all client data. CPRC Rule 3-100 [“(A) A member shall not reveal information protected from disclosure by Business and Professions Code section 6068…”]; “It is the duty of an attorney… to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” B & P § 6068 (e) (1)..

Question One: “What constitutes the client file?”
Answer: All data, whether kept in an office or elsewhere, including documents stored in manila folders or digital data stored on computers, thumb drives, disks, smart phones, tablets, in the cloud, etc.

Question Two: “Where do I find the client data?”
Answer: Wherever the lawyer made, received or stored digital data – see all of the above.

Question Three: “How do I get access to the client data?”
Answer: A modern lawyer attempting “to preserve the secrets of his or her client” likely has secret passwords, encrypted hard drives, encrypted accounts, and secure cloud computing backup. Pre-planning and communication between the attorneys is the best answer.. Without the passwords the data may never be accessed.

Recommendation: Don’t let your client’s data and files fall into the black hole of death! Make arrangements before your death or disability to give an active member of the California bar, with client(s) consent, access to and authorization to take “custody and control of the files and records” of your clients [wherever you create, maintain and store your client data] if needed (see B&P §§ 6180.1 and 6180.10 [“Persons examining the files and records of the law practice of the affected attorney pursuant to this article shall observe the lawyer-client privilege…”]).

John Mounier is a member of BASF’s Legal Ethics Committee. His firm,  Elder Protection Attorneys, represents the elderly and their families.