Ten Ways To Protect Client Confidences (And Your Practice) In The 21 st Century. By Ryan Squires Scott, Douglass, and McConnico Austin, Texas

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1 Ten Ways To Protect Client Confidences (And Your Practice) In The 21 st Century By Ryan Squires Scott, Douglass, and McConnico Nailing It: The Tools You Need For Today s Practice May 15-16, 2008

2 Ryan Squires 3100 Foxfire Professional Education Scott, Douglass, & McConnico, L.L.P July present Associate Successfully represented clients on both sides of the docket in general civil litigation, professional malpractice, fiduciary duty, and wrongful death/personal injury. Taken 4 cases through trial as lead attorney. Authored and co-authored several articles: Discovery in Fiduciary Litigation State Bar CLE; Publicly Available Discovery State Bar CLE; The Litigation Privilege Baylor Law Review Online Supp. Protecting Client Confidences (in progress for State Bar CLE) Member Austin Bar Association. Member Austin Young Lawyers Association. Associate Member Calvert Chapter - American Inn of Court Worked in conjunction with members of the Texas Center for Legal Ethics and Professionalism in establishing ethics presentation/discussion for pre-law students. Admitted to practice in the following courts: Texas state courts; U.S. District Court for the Western District of Texas; U.S. District Court for the Northern District of Texas. Baylor University School of Law May 2004 Waco, Texas J.D., cum laude with concentration in general civil litigation. Student Member Waco chapter - American Inn of Court. National Trial Competition Mock Trial Team. Fraley & Fraley Mock Trial Award recipient. Baylor Law Review: Executive Editor - Fall, Winter, Spring Notes & Comments Editor - Spring Associate Editor - Fall & Winter Baylor Student Bar Association 1 st year vice president. University of Texas at Austin December 1999 Bachelor of Business Administration: Finance Silver Spurs Service Organization Interests Exercise, golf, and spending time with wife, Hillarey, and sons, Sellars and Winslow.

3 TEN WAYS TO PROTECT CLIENT CONFIDENCES (AND YOUR PRACTICE) IN THE 21 ST CENTURY Every lawyer should be familiar with the ethical duties regarding client confidences. But just being familiar with such duties may not be enough in the 21 st century. Technology, while convenient and useful, can also be problematic. This article highlights 10 things that a lawyer and/or firm can do to protect client confidences (and their practice) in the 21 st century. 1. Automatic Disclaimers. We have all seen them. They read something like this: IMPORTANT: This message is intended for the use of the individual or entity to which it is addressed and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination or copying of this communication is strictly prohibited. If you receive this communication in error, please notify us immediately by telephone at (512) and/or and delete the original message. Thank you. Messages like this occupy facsimile cover pages and should accompany every . These messages should be automatic and tailored to a specific practice area if necessary. For example, the above message may not be enough for a lawyer with a federal tax practice. That lawyer might need to add language to the footer to comply with IRS regulations. Software exits that allow a law firm to automatically place a specific footer on every outgoing . Or if your s are screened through a virus-detecting software program, the program can generally place the automatic footer on all outgoing s. These messages are especially important in today s environment. Computers sometimes automatically fill in addresses after the user types in the first 3 letters. User inattention can mean an meant for a client will go to someone else that may share the same name. The bottom line is that the footer is necessary. It should be automatic and tailored to your specific practice area. 2. Metadata Assistants. Many documents created on a computer contain metadata. Metadata is essentially data about data. Word, Excel, and PowerPoint documents are just a few examples. Someone with a little know-how can receive a word document via and use the metatdata embedded within that document to find out the original author, previous edits, track changes, previous versions, etc. Lawyers need to have some sort of cleansing process that automatically screens and strips all outgoing documents of metadata. Software exists that allows a lawyer to specify which metadata to strip. 3. Client Encryption. While it is difficult to absolutely prevent a third party from intercepting messages while in transit from a lawyer to a client, encryption makes it next to impossible for that third party to read the . Lawyers dealing with extremely sensitive messages may opt for this higher level of protection. In simple terms, encryption allows a key/password to be used by the receiver of the

4 to unlock the message and read it. If someone tried to intercept the message, it would be a jumbled mess of letters and characters with no meaning. PGP Corporation is one of the most popular providers of encryption services. PGP s website is 4. Firewall Protection. One would be amazed at the number of hackers in cyberspace looking for open doors. Given the strict confidentiality surrounding the legal profession, ever attorney and firm must make sure their doors are locked. Firewall protection can be in the form of software or hardware. But the purpose is the same. Firewall protection limits what can come in to a firm s computer system from the outside world. Most firm firewalls will allow information to come in that is requested from within, i.e. an attorney types in a website address and the firewall allows that outside information (the website) to come in to the firm (on the lawyer s computer) because it was requested from within the firm. But unsolicited information should be blocked. One example of firewall protection is WatchGuard. Information about this service can be found at 5. Strict Password Policies. Someone with enough time and motivation can browse the internet, download free hacker software, and then, if allowed into a firm s system (i.e. no firewall) use that software to steal lawyers passwords and get into the firm s computer system. Hacker software can make a mind-boggling amount of attempts every couple of seconds trying to figure out passwords. If the password is not complex, the hacker wins every time. Law firms should have strict password policies that utilize upper and lower-case letters, characters, and numbers. The more complex the password, the harder it is to crack. In addition, passwords should expire frequently, every few months. 6. Working-From-Home Policies. Technology makes it easy to work from home, a hotel, or essentially anywhere with internet service. But generally those environments are not as secure as working from the office, where the firm has probably taken steps to secure its information. Lawyers and firms need to be aware of the risks of working away from the office and take steps to minimize the potential risks. For example, an attorney may take a work laptop home every night to finish the day s work or surf the internet while on the couch. If that attorney connects the laptop to the internet using a wireless router that has not been secured, then everything on the laptop is at risk of interception. A third party can enter the open (i.e.- not encrypted) network and get information/documents off the lawyer s laptop even if the lawyer is not actively using the particular program or document. Law firms that allow lawyers to work form home, and lawyers who do, should make sure that the home wireless network is adequately secured to prevent third-party interference. In addition, many firms use software that allows a lawyer, while away from the office, to connect to the office computer system. The result is a lawyer who has access to all the firm s documents, s, etc., as if he/she was at his/her desk. While this convenience is understandably necessary, the lawyer and/or firm should make sure that adequate measures are taken to protect the information traveling between the lawyer and the office. Citrix is a company that provides services designed to protect information traveling from an at-home lawyer and the office. Information can be found on Citrix s website at 2

5 7. Blackberry/Treo Policies What happens to all the sensitive material and s on a lawyer s blackberry or similar device when the device is accidentally left on an airport chair? If the lawyer has thought ahead, then (i) anyone who picks up the device would need a password to get the information, and (ii) the lawyer can send a signal from a remote location, wiping clean all the information located on the device. would allow a former employee to still have access to firm s and documents. These two policies are a must. Every lawyer needs a complex password to get into his/her handheld device. And every firm should set up its handheld devices with the ability to be wiped clean from the office if one is lost or stolen. 8. Reliable SPAM filters A reliable SPAM filter is a necessity. A reliable filter will stop junk mail from entering your inbox and divert it to another storage area. But even a reliable filter is not 100% perfect. Every lawyer should have a SPAM filter that notifies the lawyer at least once a day of the s that have been tagged as junk. This allows the lawyer to view the addresses and/or subject lines to ensure that nothing important was accidentally tagged as junk. 10. Intra-firm protection. Some cases are so sensitive that the client only wants certain people within a law firm to have access to the file. Sometimes it involves embarrassing facts, sexual harassment allegations, etc. In that situation, a firm s document management system should be able to lock certain documents so that only the desired participants can view them. In addition, every firm/office should have an intra-firm policy that quickly terminates an employee s access to the firm s computer system if that employee ever leaves the firm. This will ensure that there is no lag time that 3

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