February 23, 2011
In the world of litigation, it is a difficult enough task to wade through all the laws, acts and statutes that compose constitutional law. With the introduction of new technologies dealing with cyberspace, one of the issues laws firms have to contend with electronic communication.
Electronic communication encompasses the areas of document review or electronic discovery, electronic file formatting, file retention, transmission, and content management. This is not a technical matter that can be simply left to computer professionals or law office support staff; it requires the active participation of the attorneys as well.
While cyberspace continues to grow, the options available to police cyberspace are not in place, making the tasks of law firms even more difficult. Now along with intellectual property cases, contract resolution and fraud cases, attorneys using electronic communication to carry out their work must recognize the importance of security and privacy issues. Attorneys have to ensure the ‘legwork’ done to gather electronic evidence for a case does not violate the attorney-client privilege, the client’s confidentiality or breach the protocol in place for gathering evidence, all on an electronic platform.
Attorneys have professional obligations that are expected under the Model Code or Model Rules. Those who fail to recognize and fulfill those obligations will hamper their ability to practice law effectively, risk alienating their clients, and face possible professional actions under the version of the Model Code or Model Rules in their jurisdiction.
Law Firms and Electronic Communication Dealing With Cyberspace
Today’s law firms are often required to convert, create, store and transmit legal documents and other components of a client’s file electronically which brings concerns regarding electronic communication security and content management. When traditional paper files are converted to electronic format, there is a preference of saving the file in native or raw format because of the ease of opening a document with multiple applications and toolkits that support this format. There are also protocols attorneys should follow as listed in Ethics Opinions 2010-02 for proper procedure for retention, storage, ownership, production and destruction of client files. While it is wise to keep an electronic and traditional paper copy of documents, it can be quite costly storing data in both formats. Some documents such as wills are classified as category 1 documents, must also be retained in traditional paper format. Documents classified as category 2 such as photographs and memoranda can be destroyed after being converted to electronic format (Ethics Opinion 2010-02, p.13). In electronic communications, attorneys must ensure that measures are in place to protect the confidentiality, security and integrity of the documents and the process must be at least as secure as that required of traditional paper files (Ethic Opinions, 2010-02), although unlike paper files, electronic files must be ‘backed up’ on another computer or media in case of a computer crash, the original file becomes corrupted, or the attorney’s office is damaged. One option that attorneys are using for data backup is cloud computing. Cloud computing is a new technology for data storage hosted by a third party vendor. A law firm would hire a third party vendor to host the data instead of keeping the data on the law firm’s servers. While cloud computing would allow an attorney to access client’s files from almost anywhere in the world, the issue of confidentiality comes to the forefront since the sensitive data is out of the attorney’s hands and being controlled by the third party host. There is also the threat of the host server being hacked and the data compromised. Electronic...