Dear Ethics Committee:
My office recently upgraded its email service. I have started receiving daily briefing emails from the new smart assistant that is incorporated into it. They can be helpful in reminding me to get back to someone. But they also contain direct quotes from my emails, including client emails. This seems like an intrusion on my obligation to maintain client confidentiality, but I am unsure. What are my ethical obligations under these circumstances?
You are correct to be cautious. Under N.H. R. of Prof. Cond. R. 1.1, attorneys have an ethical obligation to understand the risks and advantages associated with technology they use in their practice. Our New Hampshire Rule imposes a broader requirement than the corresponding ABA Model Rule. It is incumbent on you to understand how your information technology products are treating your clients’ confidential information. This can be a time consuming and complicated process. It also requires constant vigilance. These information technology products can include e-mail services, virtual assistants, and smart devices.
Protecting a client’s confidential information is the core of the attorney-client relationship. N.H. R. of Prof. Cond. R. 1.6(c) states that a lawyer “shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” When determining what factors guide an attorney’s determination of reasonable efforts, the attorney should consider: “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.” ABA Comment  to Model Rule 1.6; see also ABA Formal Op. 477R, June 2017. You should engage in a “fact-based analysis” using these factors as a guide to determine what “reasonable efforts” are appropriate.
In some cases, particularly where highly sensitive data is involved, you should consider obtaining informed consent from the client. N.H. Bar Ethics Op. 2012-13/04. An attorney may “reveal information relating to the representation of a client” when that client provides informed consent. N.H. R. of Prof. Cond. R. 1.6(a). Depending upon the circumstances, you might incorporate this into a new or revised client agreement.
Turning back to your specific example, you would be wise to consider disabling the feature. The ABA has recently suggested that lawyers “should disable the listening capability or devices or services such as smart speakers, virtual assistants, and other listening-enabled devices while communicating about client matters.” ABA Formal Op. 498, March 2021. With the increase in decentralized and remote offices, your personal space may start physically or “virtually” overlapping with your workspace. You should examine whether and to what extent your personal space may contain information technology products exposed to your client’s confidential information.
Information technology products and smart devices are useful and can make certain tasks easier and more efficient. They can make the legal services we provide more cost effective and more accessible. This is in our clients’ interests. But these advantages do not come without risks. It is your duty to be aware of the benefits and risks of the information technology products you use and to make reasonable efforts to avoid the improper disclosure of client confidential information.
This Ethics Corner Article was submitted for publication to the NHBA Board of Governors at its May 20, 2021 Meeting. The Ethics Committee provides general guidance on the New Hampshire Rules of Professional Conduct and publishes brief commentaries in the Bar News and other NHBA media outlets. New Hampshire lawyers may contact the Committee for confidential and informal guidance on their own prospective conduct or to suggest topics for Ethics Corner commentaries by emailing the Ethics Committee Staff Liaison.