Amended rules requiring lawyers to protect clients’ confidential information went into effect in New York on January 1 of this year.
The changes include a modification of the existing Rule 1.6(c) requiring attorneys to exercise “reasonable efforts” to protect clients’ confidential information, both in storage and transmission. Lawyers can meet this “reasonable efforts” requirement by showing that they have adopted safeguards that are appropriate given the sensitivity of the information and balance the risk for loss against the difficulty and expense of imposing the safeguards. No particular protections are required, though clients may themselves require lawyers to adopt specific safeguards.
The language of the new rules largely follows the recommendations of the American Bar Association’s Ethics 20/20 Commission, which was formed in 2009 to update legal ethics rules to the risks and realities of the modern digital workplace. Rule 1.6(c), for example, is intended to address the increasing possibility that confidential information could be compromised through a data breach or by inadvertent disclosure (e.g., by accidentally emailing information to the wrong party).
Since the Commission’s recommendations were incorporated into the ABA’s Model Rules of Professional Conduct in 2012, a total of 30 states, including New York, have adopted some version of them. In two other states, Montana and Wisconsin, the rules also went into effect on January 1, 2017.
While New York’s language largely tracks the ABA’s Model Rules, there are a few notable differences. New York’s rules more broadly protect confidential information of prospective clients and former clients, expressly including such information in Rule 1.6(c). New York also declined to add language in the ABA Model Rules aimed at permitting disclosure of confidential information under some circumstances in order to detect and resolve potential conflicts of interest that might arise when the lawyer makes a lateral move. Instead, New York provides extensive guidance in its comments to Rule 1.6 regarding the obligations of lawyers making a job change, which is not present in the comments to the ABA Model Rules.