Dealing with digital data in the practice of law: do you know where your data is?

Computers improve productivity. An attorney can quickly and easily modify documents. Networked computers enable almost instantaneous transfer of documents among support staff, colleagues, clients, and other parties involved in a transaction. Additionally, an Internet connection enables documents to be quickly and effortlessly shared among different parties without regard to physical location. For example, Ms. Attorney can write a first draft of a contract that can be sent to Ms. Client as an email attachment. Typically, Ms. Client would be able to download and read the draft in a matter of seconds (or at most minutes) whether she is across town or on the other side of the planet. Using a conventional word processing program, Ms. Client can make changes to the draft and email it back to Ms. Attorney. Once Ms. Attorney and Ms. Client finalize the draft, it can be forwarded, via email, to counsel representing other parties to the contract. Such transactions have become common place in light of the ubiquitous usage of email and word processing programs today.

The rapid expansion of wireless networks over the past decade has also increased productivity. Attorneys increasingly carry a PDA, such as a Blackberry, a laptop computer, or both. Wireless Internet access, commonly referred to as hotspots, abound. The ubiquitous Starbucks contain hotspots in most of their locations. Increasingly, airports offer wireless Internet access. And, most major business hotels offer wireless Internet access that is increasingly provided at no charge. Most recently, wireless telephone providers have begun to offer high-speed wireless Internet access throughout entire metropolitan areas, such as Boston. Some cities are even contracting with private companies to install wireless access for all city residents.

From one perspective, the widespread use of computers and digital data has not changed what an attorney does. They still spend substantial time drafting and reviewing documents. The use of computers and the Internet has merely replaced the use of the mail, the fax machine, and couriers in many situations. However, the increase in computer usage brings with it a decreased ability to control documents and to protect confidential client data. In the pre-computer era, documents had to be typed or printed and physically delivered to recipients for review. The nature of such documents made copying them difficult and time-consuming. The likelihood that a document would be subject to being copied and widely distributed was limited simply due to the difficulty and expense of doing this. In contrast, a document in digital form can be copied and widely distributed almost instantaneously whether it is one page or 500 pages in length. Additionally, the Internet allows such transfers to reach virtually around the world in a matter of minutes. Likewise, in the pre-computer era physical security measures such as locked file cabinets were generally adequate to protect confidential client data, especially since neither members of the public nor unauthorized persons would be allowed to wander around a law firm and rummage through client files. The attorney controlled access to the files and the documents contained in the files. Saving client data in digital form on a computer makes it more difficult to control access to such data.

The movement from a paper-based world to a digital world has not altered the obligation of attorneys to safeguard client information pursuant to the rules of professional responsibility. Such rules, which govern attorney conduct, generally mandate that an attorney must use reasonable efforts to safeguard client data against unauthorized or inadvertent disclosure by either the attorney (1) or non-attorney employees, such as paralegals, law students, investigators, and IT personnel. (2)

Although many legal issues involving the storage and safeguarding of digital data have not been definitively addressed by courts, state bar ethics and professional responsibility committees have provided some guidance in formal opinions. The Maine Professional Ethics Commission opined that an attorney could maintain all

client flies exclusively in digital form provided that she also maintained copies of any software needed to access the files in the future. (3) A recent opinion by the Nevada Committee on Ethics and Professional Responsibility went a step further by advising that confidential client computer files could be stored, without the consent of the client, on a computer system maintained …