United States: Untrusted Advisor: How Your Law Firm May Fail To Protect Your Data

Last Updated: December 9 2015
Article by Richard D. Lutkus

In recent years, the prevalence of data and information security breaches at major corporations have become increasingly more commonplace. While general awareness may be increasing, many companies are still neglecting to address serious information security issues.

Breached data can include proprietary or confidential information, trade secrets, personally identifiable information, health-related data, privileged communications, and regulatory data. Such data is often subject to preservation due to pending or reasonably anticipated litigation, government investigation, due diligence, or other applicable legal matter, meaning the data is routinely transferred and shared with outside counsel for analysis and support of clients' claims and defenses.

Many law firms provide guidance regarding information governance to clients, however more times than not, firms fail to realize that they too are also responsible for following similar guidelines. Appropriate precautions must be in place throughout a firm to protect the integrity and sanctity of client data, prevent unauthorized access, and to ensure timely remediation. However, firms must also have this data available for litigation response, analysis, and review. Therefore, keeping data entirely offline is rarely an option.

There are several pillars of governance that law firms should consider when examining the handling of both their own data as well as that of clients. As a fiduciary of their clients' data, firms that fail to address these issues will eventually find themselves in an ethical nightmare, that when applied to a partnership creates a considerable problem.

Information Storage, Retention, and Remediation

Organizations must work to ensure that data is protected from physical threats including loss of power, environmental disasters, hardware failures, and theft. Thus, careful planning and selection of datacenter features and location is paramount; some qualities of preferable datacenters include geographically diverse co-location, failover systems, backups of key data, backup power sources, cloud usage, and encryption at rest and in transit.

Various options for hosting data exist, however due to the prevalence of unreliable datacenters, clients are now requesting that their firm disclose information about where and how their data is stored, the protections in place to secure it, and data breach response plans; some sophisticated clients even put law firms through information security audits. Two very core compliance questions often involve a few main categories of inquiry:

1. Industry-Standard Compliance Protocols

As technology advances and attacks become increasingly sophisticated, it is critical that data be secured using industry accepted protections including but not limited to SAS 701, SSAE 162, and SOC1 – SOC33. While the details of each are extremely complex and beyond the scope of this article, firms should consider seeking compliance with them because they are critical measures of standards.

Another key measure is the "tier" system associated with datacenters, which can be summarized as follows:

Tier Features Datacenter Availability Offline Time per Annum
Tier 1 Non-redundant capacity components (single uplink and servers) Guaranteeing 99.671% data availability System will be completely down/offline/no access for almost 29 hours a year
Tier 2 Tier 1 + Redundant capacity components. Guaranteeing 99.741% data availability System will be completely down/offline/no access for almost 23 hours a year
Tier 3 Tier 1 + Tier 2 + Dual-powered equipment and multiple uplinks Guaranteeing 99.982% data availability System will be completely down/offline/no access for almost 2 hours a year
Tier 4 Tier 1 + Tier 2 + Tier 3 + all components are fully fault-tolerant including uplinks, storage, chillers, HVAC systems, servers etc. Everything is dual-powered Guaranteeing 99.995% data availability System will be completely down/offline/no access for around 27 minutes a year

The cost of provisioning services in these tiers varies greatly, which obviously is a critical decision factor for companies and firms alike. Note, of course, that nobody gets to choose the downtime other than for scheduled maintenance.

2. Data Availability and Security

As previously mentioned, firms need to provide data to authorized users when necessary. Often, preservation data is only needed when it's time to cull the data for document review or analysis. Beyond that, having an entire preservation copy on the network may not be necessary. If it is online for convenience of reference, firms should consider setting up a VLAN (virtual network) that allows the system to only exist within the firm's physical network and only allow access to specific employees.

Encryption also provides for protection of client data by ensuring that any data coming into or leaving the firm is transported either on encrypted media or via SSL with TLS over the Internet. The proper use of encryption software, such as VeraCrypt protects against inadvertent leakage of data while in transit with common carriers. Accordingly, law firms should train employees to send passwords separately or over secondary communication sources to avoid providing an interceptor with full access to the underlying data.

For data on firm servers, information technology or security professionals should ensure that two-factor authentication (2FA) is used, as it combines a username and password with a second layer of security. Firms may also conduct routine audits to find stale accounts present on the network, and also use "tripwire" software that monitors client evidence repositories and maintains an access trail that allows for alarms to be triggered upon certain events on the evidence.

While a firm may make significant efforts to ensure that data is available when needed, it must also consider the process surrounding secure destruction of data when appropriate. This is a complicated process, requiring the case team to consider whether preservation obligations exist, whether the data may be connected to other matters, and whether a certification of deletion may be appropriate.

Device Management

Risk of theft remains a prevalent issue for laptops and other mobile devices as they usually contain sensitive business information. Once again, the proper use of robust encryption can safeguard data from being disclosed to unauthorized parties.
Although members of a law firm's IT group will traditionally keep an updated inventory of all workstations and devices in use by its employees, they may be unaware of devices received from clients, third parties, or opposing counsel. Proper procedures to account for these devices can help to avoid loss of data, inadvertent destruction, and/or infinite retention of the devices. As part of a firm's device management policy, firm-appointed personnel should carry the responsibility of tracking any such devices, and creating chain of custody forms for original evidence.

Firms should also consider employing Bring Your Own Device (BYOD) policies, which allow employees of the firm to utilize their personal cell phones, tablets, computers, or other devices for use with firm data. Mobile Device Management (MDM) software can help to manage employees who seek to check corporate email on personal cell phones and allows the firm or corporation to reset a device and remove firm or corporate data from the device. Without such software an employee is able to, easily forward company information via a personal mailbox on the device unbeknownst to the company since the email would not be flagged on their email servers as having been sent/forwarded. Citrix, Sudo Security, and Apple offer MDM software.

Phishing and Social Engineering

If an attacker is interested in gaining access to firm information, various attack vectors may be pursued. A highly effective yet very basic attack uses social engineering by impersonating members of an organization (frequently IT), and convincing a user to disclose passwords, documents, and other sensitive information. This method doesn't require the attacker to have detailed knowledge of the underlying systems and relies on the victim to circumvent any security measures, and thus is extremely low risk and carries with it the potential for significant rewards.

Phishing on the other hand relies on the untargeted distribution of fraudulent information to substantial numbers of recipients. A phishing email may instead impersonate a common social networking website demanding that a user reset their password. The link may contain malicious software or direct the recipient to a third-party website to steal their credentials.

The primary method of preventing social engineering and phishing attacks is simply through user education.

Additional Security Considerations

Law firms are increasingly adopting additional security precautions regarding the identification and authentication of its users when accessing documents, networks, and devices. The most basic precaution is having its users regularly create and revise complex passwords.

In order to protect a firm from information theft, a standard process for employee separation should be implemented, involving device deactivation (or at least password resetting), and return of all mobile devices and access cards.

Finally, when an employee is traveling, domestically or internationally, devices should be properly encrypted to prevent the disclosure of information in the case of physical theft. If connecting to a public or potentially insecure network, employees should always endeavor to utilize a VPN connection or through remote desktop environment, such as Citrix.

Ethical Considerations

The American Bar Association Model Rules provide broad guidance regarding ethical obligations. ABA Model Rule 1.14 requires competence in selecting and using technology and calls for attorneys who lack the necessary technical competence for security to consult with qualified people who have the requisite expertise.

ABA Model Rule 1.65 generally defines the duty of confidentiality and broadly extends that duty to "information relating to the representation of a client." It's now commonly accepted that this duty applies to client information in computer and information systems as well. An amendment to this rule added Comment 166, which requires reasonable precautions to safeguard and preserve confidential information.

ABA Model Rule 1.47, Communications, also applies to attorneys' use of technology and requires appropriate communications with clients "about the means by which the client's objectives are to be accomplished," including the use of technology. It requires keeping the client informed and, depending on the circumstances, may require obtaining "informed consent" and also requires notice to a client of compromise of confidential information relating to the client.

These rules set up broad definitions regarding what an attorney should do in relation to holding data and communicating. Some states have taken these broad principles and developed more specific standards. For example, in Arizona, attorneys and law firms are obligated to take competent and reasonable steps to assure that the client's confidences are not disclosed to third parties through theft or inadvertence. Lawyers in Arizona must also recognize their own competence limitations regarding computer security measures and take the necessary time and energy to become competent or alternatively consult available experts in the field.

Whereas, in California, attorneys have an express duty "[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.8" Rule 3-110(A)9 also prohibits the intentional, reckless or repeated failure to perform legal services with competence.

Massachusetts law, M.G.L. c. 93H10, is unique in that it applies to "persons who own, license, store or maintain personal information about a resident of the Commonwealth of Massachusetts." It requires covered persons to "develop, implement, and maintain a comprehensive information security program that is written in one or more readily accessible parts and contains administrative, technical, and physical safeguards." In addition to requiring a risk assessment, the regulation contains detailed requirements for the information security program and detailed computer system security requirements. Some observers believe that this Massachusetts law will become a model for comprehensive protection of personal information.

Finally, Nevada also has laws that require "reasonable security measures" and encryption11(NRS 603A.210 and NRS 597.970).

Cloud Storage and Ethics

Aside from the ethics opinions above, the specific issues surrounding the use of cloud storage is a relevant topic for attorneys as cloud storage offers convenience and savings. Thus far, US ethics commissions have determined that it is ethical for lawyers to use cloud computing, with most concluding that lawyers must take reasonable steps to ensure that the firm's confidential data is protected from unauthorized third party access12. The ABA also provides a helpful map that delineates cloud computing provisions by state13.


A security policy is only as strong as its weakest physical or digital link. Law firms must ensure that their information governance policies and strategies consider both its own data and the data of its clients. Although members of a case team may not know the underlying protections and precautions that have been put into place within the firm, they should be able to consult with IT in order to provide those answers.


1. More information is available at: http://sas70.com/sas70_overview.html

2. http://ssae16.com/SSAE16_overview.html

3. https://www.cpa2biz.com/Content/media/PRODUCER_CONTENT/Newsletters/Articles_2012/CPA/Jun/Easy123.jsp

4. Available at: http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence.html

5. Available at: http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information.html

6. Available at: http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information/comment_on_rule_1_6.html

7. Available at: http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_4_communications.html

8. See 1/ Bus. & Prof. Code, § 6068, subd. (e)(1).

9. Available at: http://rules.calbar.ca.gov/Rules/RulesofProfessionalConduct/CurrentRules/Rule3110.aspx

10. Available at: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXV/Chapter93H

11. Available at: http://www.leg.state.nv.us/nrs/nrs-603a.html and http://www.westernreportingservices.com/NRS597.970.pdf

12. See generally: North Carolina State Bar Council 2011 Formal Ethics Opinion 6; Massachusetts Bar Association Ethics Opinion 12-03; Oregon State Bar Formal Opinion No. 2011-188; Professional Ethics Committee of the Florida Bar Op. 10-2 (2011); New York State Bar Association's Committee on Professional Ethics Op. 842 (2010); Pennsylvania Bar Association Ethics Opinion No. 2010-060 (2010); and Iowa Committee on Practice Ethics and Guidelines Ethics Opinion 11-01 (2011).

13. Available at: http://www.americanbar.org/groups/departments_offices/legal_technology_resources/resources/charts_fyis/cloud-ethics-chart.html#

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions