Changes to the Ohio Rules of Professional Conduct: Part 1
June 1, 2015
As we reported earlier this year, effective April 1, 2015, the Supreme Court of Ohio adopted several amendments to the Ohio Rules of Professional Conduct. The overarching focus of the amendments is to acknowledge and impress upon Ohio lawyers the importance of staying current with technology.
For example, the definition of ‘writing’ found in Rule 1.0 [Terminology] has now been broadened from ’email’ to ‘electronic communication’ as a form of writing. And as part of the Supreme Court’s effort to encourage Ohio lawyers to stay current with technology, comment 8 to Rule 1.1 [Competence] now includes the following admonition:
“To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology…”
This signals that we all now have a standard of care that incorporates staying current with technology.
Rule 1.6 [Confidentiality] has been also been amended to impress upon Ohio lawyers their need to safeguard client confidences in the face of increasingly rapid changes in technology. Rule 1.6 (c) now requires Ohio lawyers to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of or unauthorized access to client information. This is a reminder that lawyers need to be very careful about where they store client information. Comment 18 to Rule 1.6 adds more detail to these obligations.
In assessing the reasonableness of the lawyer’s efforts to safeguard client information, the following factors should be considered: the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards and the extent to which the safeguards adversely impact the lawyer’s effectiveness (i.e. by making a device or important piece of software excessively difficult to use).
Comment 19 to Rule 1.6 states that lawyers, when transmitting a communication that includes client information, must take reasonable precautions to prevent the information from being exposed to unintended recipients. Clients may require lawyers to implement special security measures not required by the rule.
Likewise, Rule 4.4 (b) [Respect for the Rights of Third Persons] has been amended so that in addition to receiving an inadvertently sent document, the lawyer must also promptly notify the sender if he or she receives electronically stored information that was inadvertently sent. As Comment 2 to Rule 4.4 indicates, electronic information includes electronic communication, and other forms of electronically stored information, including embedded data – commonly known as ‘metadata.’ As Comment 2 advises, metadata creates an obligation under this rule only if the receiving lawyer knows of or reasonably should know that the metadata was sent inadvertently.
All these amendments create new and different obligations for lawyers and necessitate staying current on the technological advances in our practice areas.