New York Bar Outlines Attorneys’ Duty to Protect Smartphone Data

An attorney who stores the confidential identity of their clients on a smartphone must not consent to share contact information with an app if that information will be shared with any human, the New York State Bar Association said.

A lawyer’s contacts might include criminal representations, and an attorney is required to “make reasonable efforts” to prevent disclosure of confidential client information under Rule 1.6(c) of the New York Rules of Professional Conduct, the New York Bar said in an ethics opinion dated April 8.

“Insofar as clients’ names constitute confidential information, a lawyer must make reasonable efforts to prevent the unauthorized access of others to those names, whether stored as a paper copy in a filing cabinet, on a smartphone, or in any other electronic or paper form,” the ethics opinion says.

The New York bar further explains that, before an attorney grants access to their contacts, the lawyer must “determine whether any contact” is confidential within the meaning of Rule 1.6(a).

If there is confidential information on the smartphone, the lawyer must determine if a human being will view the data and if it will be sold without the client’s consent, according to the ethics opinion.