Ethics, Starbucks®, and the iPhone®

Recently, Hon. Ron Hedges¹ conducted a CLE in the Jury Assembly Room of the Federal Courthouse in Denver, Colorado, on the topic of Electronic Discovery: Trends and Developments under the Federal Rules of Civil Procedure and Beyond. Ethics was the focus, as the general topic is extensive.

All aspects of e-discovery interest me. However, there was one discussion on the ethical issue of confidentiality and competence in relation to the use of, for example, Starbucks’® public Wi-Fi?

The question arose from Formal Opinion No. 2010-179 of the California Standing Committee on Professional Responsibility and Conduct,² with the issue being:

Does an attorney violate the duties of confidentiality and competence he or she owes to a client by using technology to transmit or store confidential client information when the technology may be susceptible to unauthorized access by third parties?

Say you are in Starbucks® on your laptop. Starbucks® offers public WiFi, and you’re checking email. You see one from a client and you open it. It reads, “Attached are copies of the emails you requested for use as evidence.” You reply that you will call later and go to another email.

Has our lawyer violated an ethical standard? According to Rule 1.6: Confidentiality of Information, Client-Lawyer Relationship, of the ABA Model Rules of Professional Conduct states in pertinent part that a "lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent...."³

It probably depends, but it should not even be an issue.  Why? because our lawyer is using a secure hotspot on the firm’s iPhone. Okay, I tried to be slick by saying Starbucks® offers public WiFi, and you’re checking email. Two unrelated facts, as it turns out.

Anyone wanting secure internet access in public places should, at a minimum, set their computer’s firewall properly and turn off file sharing settings.⁴ The best protection for securing your internet access, I think, is having a personal hotspot like that offered on iPhones as well as other, if not all, smart phones.

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¹ Hon. Hedges "has extensive experience in e-discovery and in the management of complex litigation and has served as a special master, arbitrator and mediator. He also consults on management and discovery of electronically stored information (“ESI”). Ron was a U.S. Magistrate Judge in the U.S. District Court for the District of New Jersey for the Court Mediation program, a member of the Lawyers Advisory Committee, and both a member of, and reporter for, the Civil Justice Reform Act Advisory Committee. From 2001 to 2005, he was a member of the Advisory Group of Magistrate Judges. Ron was an adjunct professor at both Seton Hall University School and Georgetown University Law Center, and is currently an adjunct professor at Rutgers School of Law, Newark. He was also a Fellow at the Center for Information Technology of Princeton University for 2010-2011 and 2011-2012. Ron is a member of the College of the State Bar of Texas. Among other things, he is a member of the American Law Institute, the American Bar Association and the Federal Bar Association. Ron is a member of the Historical Society and the Lawyers Advisory Committee of the United States District Court for the District of New Jersey. He is a member of The Sedona Conference® Advisory Board, The Sedona Conference Working Groups on Protective Orders, Confidentiality, and Public Access and on Electronic Document Retention and Production. Ron is also a member of the advisory board of the Advanced E-Discovery Institute of Georgetown University Law Center. He frequently writes on ESI-related topics." From the biography for Ronald J. Hedges provided on The Sedona Conference® website, available at https://thesedonaconference.org/bio/hedges-ronald (last visited Feb 10,2014).

 ²THE STATE BAR OF CALIFORNIA  STANDING COMMITTEE ON  PROFESSIONAL RESPONSIBILITY AND CONDUCT  FORMAL OPINION NO. 2010-179 , http://bit.ly/1f0mZBo (last visited Feb 10, 2014).

 ³Rule 1.6: Confidentiality of Information | The Center for Professional Responsibility, http://bit.ly/1iRLKBq (last visited Feb 10, 2014).

⁴  See, e.g., How to stay secure on public Wi-Fi, http://bit.ly/1fUf4Fx (last visited Feb 10, 2014).