In this article we examine three recent ethics opinions, two from the New York State Bar Association Committee on Professional Ethics, and one from the Professional Ethics Committee of the New York City Bar Association (respectively, the NYS Bar Committee and the New York City Bar Committee). Since readers of this column may have noticed in the past that these columns are not always entirely complimentary about opinions issued by the Committees, it is important to note at the outset that all three of the opinions discussed here are well crafted and offer practitioners genuinely useful guidance on topics that arise quite frequently in practice.
Duty To Protect Client Information Stored on a Lawyer’s Smartphone. In its Opinion 1240, issued on April 22, 2022, the NYS Bar Committee addresses the common problem of what lawyers should do when seeking to download an app which, in the process of selecting the download, asks whether the lawyer gives consent for the app—and perhaps others—to access the lawyer’s contacts stored on the smartphone. The opinion answers the question whether the lawyer may give consent to that access. The digest of the opinion states:
If “contacts” on a lawyer’s smartphone include any client whose identity or other information is confidential under Rule 1.6, then the lawyer may not consent to share contacts with a smartphone app unless the lawyer concludes that no human being will view that confidential information, and that the information will not be sold or transferred to additional third parties, without the client’s consent.