The speed with which the Internet has become critical to lawyers and their clients is almost unbelievable. The ubiquity of the Internet and digital platforms are transforming many professions that are carrying out business. Here the law is not an exception.
Our profession has become permanently transformed by Internet-based technologies. While in many ways a blessing in terms of empowerment, there is a price to be paid. These are the threats to data in computers, mobile devices, and information systems used by attorneys. Such breaches of security, usually known as “hacking”, are at an all-time high.
The good news is that there is high competition is out there in the field of techno software there are new forms of attacks based on destructive software known as “malware.”
Not everyone is aware of the latest advances in software programming and hardware computer defense. The suggestion here is to be aware of the latest advances in data and computer hardware. Such awareness can increase the profit of a legal professional while establishing a stronger relationship with clients based on the principle of “mutual benefit.”
A further suggestion is for lawyers to prioritize a focus on the concept of ‘cybersecurity,’ a new phenomenon that is changing the way legal work is done. Competent lawyers must have a superior understanding of the technologies that are available and that they use. Lawyers should keep abreast of the regulatory framework changes.
Another key area for the legal professional to be alert is in the area of digital privacy. Digital laws regarding digital privacy changing. More changes can be expected, especially with the coming of Artificial Intelligence (“AI”) attack and defense software apps and tools.
Breaches have become so prevalent that a common saying in cybersecurity today is: “There are two kinds of companies: those that have been hacked and know it and those that have been hacked and don’t know it.” (McAfee Software, 2014)
As clients have demands on the protection of their data, they reasonably are attracted to the most updated firm. Thus for reasons of offering the best service to clients and attract the best clients, lawyers will be bound to protect the client's information from cyber-attack.
The National Institute of Standards and Technology (“NIST”) gives guidelines for cybersecurity used by the Government. The NIST standards are voluntary, but the implementation of the standards should be sufficient for most law firms to defeat a malpractice suit by a client whose data is breached.
Higher standards may be necessary for some firms with clients who require (or demand) higher levels of data protection. These will also be the most desirable clients, as they have information deemed valuable enough to steal or hack!
The NIST Standards include a Section on “Competence”. Competence covers the general duty of having the capability of performing clients’ work to the contracted or generally accepted professional level.
Competence “requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.” It also includes competence in selecting and using technology, including cybersecurity.
The Standard on Communications also applies to attorneys’ use of technology. It requires appropriate communications “about how 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.”
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.
The lawyer must meet the minimum standard of ethical and common law duties that keeps the strongest safeguards of client information.
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