That means no discussing it freely with outsiders over coffee, no slip of the lips at Happy Hour and no mistakenly emailing what should be a missive to a client to opposing counsel instead. And, with all the technology available to store client data, pleadings, discovery and other pertinent matters on something as small as a pocket flash drive, why are lawyers concerned about how to keep information confidential?
According to Joshua Lenon, Lawyer in Residence for Clio, when it comes to preserving protected client information, attorneys should consider the type of information they have, why they have it and who within the firm should be able to access it. “Just look at emerging legislation to see” that lawyers are increasingly expected to protect client data, he says. HIPPA laws are one example.
That being said, attorneys also need to educate their clients about doing their part to keep their private information confidential. That’s because the average layman doesn’t realize the communications they exchange with their legal counsel are supposed to be secure and confidential, although in the end, it’s the lawyer who bears the risk the information remains protected.
Therefore, Lenon suggests attorneys take the time to educate their clients how to disseminate their confidential information to the law firm so it is not improperly obtained by outsiders.
Since legal matters necessarily involve the client sharing sensitive financial and personal information with their lawyer and support staff, the attorney should ensure the client understands:
- Who from the firm may communicate with the client to obtain the information
- Appropriate methods for disseminating information to the law firm
- The steps the lawyer expects the client to take to ensure they do their part to protect the data
- That they should immediately inform the attorney if, somehow, the confidential data was inadvertently or improperly shared with outsiders
Steps Lawyers Can Take to Protect Client Data
Recently, Internet giant Yahoo! announced that millions of its users had their accounts hacked. Despite the multitude of precautions Yahoo! puts in place to prevent such infiltrations, cyber hackers still succeeded at infiltrating Yahoo’s database. However, that reality doesn’t necessarily mean lawyers are helpless when it comes to protecting their client’s sensitive information.
According to Craig Petronella, an IT Cybersecurity Expert and namesake of Petronella Computer of Raleigh, North Carolina, there are steps members of the legal community can take to thwart cyber-hackers.
They include:
- Using as many forms of encryption as possible
- Installing and using keystroke encryption
- Providing ongoing staff security awareness training and testing
Moreover, despite the constant interaction a law firm’s administrative team has with private client information, they aren’t accountable to retain that data privately as is the lawyer. The Rules of Professional Conduct clearly state the lawyer must “oversee and ensure the staff is practicing the same level of confidentiality” as the attorney does, Lenon says.
One method to accomplish that is for the lawyer to use security software that monitors and tracks access to the confidential information, Petronella suggests.
Clio’s ‘Firm Feed’ software tracks changes made to a case file so the managing partner can easily track and review amendments made to it, Lenon says. The software also details who has been accessing and viewing data contained within a file, another way to ensure that prying eyes haven’t gained improper access.
A law firm can be proactive at protecting confidential client data and educate their clients about doing their part to ensure private information stays that way, but then blow it all by what Lenon calls “giving away the keys.” An example of that is writing passwords on post-it notes and sticking them on computer monitors where anyone can see them, he says.
Another ways lawyers let their guard down when it comes to protecting client data is by using their smartphones to communicate confidential information. “Did you know your smartphone stores every keystroke you’ve ever typed?” poses Petronella.
And, he notes, that memory bank is not being created by a sinister Trojan virus or nefarious key logger. Instead, it is simply the database the phone relies on to supply AutoComplete results, he says.
“You can’t dig in and see the keystrokes yourself, but external software (malicious apps) can read back that database and thus read out every text or email you’ve sent and, more importantly, every password you’ve ever typed,” Petronella says.
Lenon has written and spoken extensively about how lawyers can protect client confidentiality. He says he is most surprised when attorneys reveal they have “massive concerns about confidentiality, but not necessarily all the facts about how to secure client data.”
He says their sometimes expansive questions are clearly based on doomsday scenarios, which techies like Lenon call “FUD.” For non-techies, the acronym translates into misinformation based on fear, uncertainty and doubt. “The best way to overcome FUD is education from trusted sources. Lawyers can learn from trusted partners, like courts, bar associations and industry leaders,” he says.
One such organization he touts is the Legal Cloud Computing Association. “It’s the first step in overcoming concerns that keep them away from helpful technology,” Lenon says.
Tami Kamin Meyer, an Ohio attorney and writer, is a recent inductee to the American Society of Journalists and Authors.