Please ensure Javascript is enabled for purposes of website accessibility

The trouble with trashing old technology

By: Jane Pribek//January 26, 2012//

The trouble with trashing old technology

By: Jane Pribek//January 26, 2012//

Listen to this article

Ethics opinion advises attorneys to consider client confidentiality obligations

With the speed at which technology trends move these days, smart phones, computers and other electronic devices can be outdated in a matter of months.

For those attorneys who are able to replace outdated technology, discarding old equipment is not as simple as throwing it in the trash.

A recent Florida Bar opinion suggests lawyers should give further thought to their old device’s fate. Ethics Opinion 10-2, initially released in 2010 and revised in 2011, advises that lawyers have an ethical duty to sanitize their discarded equipment.

Specifically, it states attorneys who use electronic devices to store documents “must take reasonable steps”
to ensure client confidentiality is maintained when disposing of devices that were used to store sensitive materials.

While there’s no similar opinion from a Wisconsin authority, Mike Berzowski, of Weiss Berzowski Brady LLP, Milwaukee, said disregarding the Florida opinion could raise issues for Wisconsin lawyers under state Supreme Court Rule 20:1.6, Confidentiality, and perhaps SCR 20:1.1, Competency.

The American Bar Association’s Ethics 20/20 Commission also is considering a rule change that would take on the issue. A Sept. 19, 2011, proposal would add a §1.6(c) to the Model Rules and require lawyers to “make reasonable efforts to prevent the unintended disclosure of, or unauthorized access to, information relating to the representation of a client.”

Ethical concerns with protecting client confidentiality can arise from personal equipment such as laptops and smartphones, but also office equipment such as copiers, said attorney Bruce Olson of ONLAW  Trial Technologies LLC, Appleton.

“My general impression is attorneys frequently aren’t thinking about the issues of how much information is available in terms of these electronic devices that can be recovered by people with even rudimentary skills,” he said. “It’s something they really need to bring to the forefront of their thinking.”

The Florida opinion defines storage media as “any media that stores digital representations of documents,” including “computers, printers, copiers, scanners, cellular phones, PDAs, flash drives, memory sticks and fax machines.”

According to the ethics opinion, attorneys affirmatively must ascertain that devices such as leased copiers have been stripped of all confidential information, “whether by some type of meaningful confirmation, by having the sanitization occur at the lawyer’s office or by other similar means.”

Olson said it’s not enough, for example, to merely ask personnel at a mobile phone store to delete all contacts and information from a phone before chucking it in the recycling bin.

“There’s a difference between deleting data and overwriting the hard drive,” he explained. “Simply deleting the data isn’t enough, because it could still be recovered. You need to have someone go in and overwrite every space on the hard drive.

“So, I would not rely on a vendor like that to take care of your need to eliminate client data — unless they specifically advertise that they have a service that overwrites data.”

Reputable vendors — professionals who administer networks, for example  — use programs that wipe a hard drive clean so the data cannot be recovered. The programs write “zeros and ones” across the entire hard disc, overwriting both the active and deleted data taking up space on the hard drive so that no data can be recovered.

Olson recommends attorneys rely on information technology professionals, whether they are in-house or outside vendors, rather than trying to strip old technology themselves.

There are programs to wipe storage devices clean available on the Web, he said, although he isn’t fully versed in what’s out there and can’t recommend one over another.

Still, using one such program is better than doing nothing, Olson said, noting that the Florida rule requires an attorney take “reasonable steps” to strip the data.

An attorney who invests some time investigating the most effective product available and who uses it properly is probably safe from the ethics standpoint, he said.

Berzowski, a frequent CLE speaker on legal ethics, said increased awareness of the issue was the first step toward avoiding potential issues.

“Like a lot of the law regarding ethics, this is not intuitive,” he said. “In other words, probably a lot of lawyers are unaware of the memory issues and access to information once a piece of equipment has been discarded.”

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests