For a while there, it looked as if the State Bar was going to require all law firms using any kind of personal mobile technology to adopt a BYOD (Bring Your Own Device) policy. Ethics Committee members and others, however, expressed concern that a Formal Ethics Opinion would serve to micromanage lawyers. Furthermore, because technology was changing so rapidly, any ethics opinion trying to direct how attorneys should protect mobile devices containing client confidential information, could become obsolete in a short time frame. Besides, lawyers already have a duty to stay abreast of changes in technology as part of Rule 1.1 (Competence). So, at its January 2016 meeting, the Ethics Committee instead voted to publish an article, in lieu of an ethics opinion, providing guidance to attorneys on how to protect client confidential information on mobile devices by adopting such a policy.
One thing I learned from sitting in on the Ethics Committee meetings, was that the “apps” or applications that you download (think Facebook, LinkedIn, etc.) can access your contacts if you let them. There are some applications that specifically ask if you will allow them to access your contacts, but there are others that may not ask permission. That’s a bit scary. If you are like me, you may have your client contact information on your smartphone. I had not previously given much thought to my applications, although my M.O. is to say no to everything: can we access your location? – NO; can we access your contacts? – NO; can we access your pictures? – HECK NO.
Deanna Brocker is a principal in The Brocker Law Firm, P.A. She focuses her practice primarily on attorney ethics, licensing, and disciplinary matters. Previously, she served as Assistant Ethics Counsel for the N.C. State Bar for over 10 years, fielding telephone ethics questions and providing advice and written ethics advisory opinions to attorneys throughout the state. Deanna regularly speaks and publishes articles on ethics, professionalism and law practice management issues.