21 States Adopt ABA Model Rule 1.6(c), Requiring “Reasonable Efforts” on Email Confidentiality

As of May 23, 2016, twenty-one states have adopted the American Bar Association’s Model Rule of Professional Conduct 1.6(c), which requires lawyers to use “reasonable efforts” to protect emails containing clients’ confidential information from falling into the wrong hands.

Eleven of these states have adopted Rule 1.6(c) since 2015 and others are expected to do so shortly: New York’s notice and comment period on its version of the new rule ends on June 1.

 For details, see the table  below .

For details, see the table below.

Rule 1.6(c) was a major recommendation of the ABA’s Ethics 20/20 Commission, originally formed in 2009 to identify and respond to ethical issues arising from lawyers’ use of modern information technology. The Ethics 20/20 Commission gave special attention to issues of client confidentiality and the dangers caused by both the storage and transmission of this information. In its 2012 report, the Commission advised that while existing rules established general obligations to keep client information confidential, storing and transmitting electronic information posed special risks and thus merited a special black letter rule.

To guide lawyers in complying with Rule 1.6(c), the ABA also added a new Comment to Rule 1.6 (now Comment 18). The Comment listed a number of factors lawyers could take into account in determining whether their efforts were reasonable:

·         the sensitivity of the information,

·         the likelihood of disclosure if additional safeguards are not employed,

·         the cost of employing additional safeguards,

·         the difficulty of implementing the safeguards, and

·         the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use)

These factors are not exhaustive, but suggest a balancing test. In general, we interpret the new Rule and Comment as obligating lawyers to go through the following process: (1) understand the risks, costs, and benefits of email, (2) select appropriate safeguards based on their own practice and the needs of their clients, and (3) ensure that these safeguards are implemented and regularly used. While this process has always been good practice, lawyers in jurisdictions that have adopted the new Rule and Comment will find it mandatory.

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Model Rule Adoption Table

Arizona

1/1/2015

Arkansas

NA

Connecticut

1/1/2014

Florida

NA

Idaho

7/1/2014

Illinois

1/1/2016

Kansas

3/1/2014

Louisiana

1/13/2015

Massachusetts

7/1/2015

Minnesota

4/1/2015

Nevada

4/4/2014

New Hampshire

1/1/2016

New Mexico

12/31/2013

North Carolina

10/2/2014

North Dakota

3/1/2016

Ohio

4/1/2015

Oregon

1/1/2014

Pennsylvania

2/28/2015

Utah

5/1/2015

Virginia

3/1/2016

Wyoming

10/6/2014