Can you keep a secret? Client confidentiality is the bedrock of any trusted legal practice. It’s a priority that informs everything from personal interactions to firm-level data protection—all of which requires effort, diligence, and planning. But in the Information Age, there are more opportunities than ever to breach confidentiality—are you REALLY giving it the attention it deserves? A recent study of more than 24,000 lawyers identified the ability to keep information confidential as the most important competency in a new lawyer. Alli Gerkman, Director of Educating Tomorrow’s Lawyers at the Institute for the Advancement of the American Legal System (who led the study) will join Joshua Lenon, Clio’s own Lawyer in Residence to explain how to keep your client secrets under lockdown. In this one-hour session, you’ll learn why keeping information confidential is crucial for every level of your law firm, as well as: Techniques for training staff and clients on preserving confidentiality Resources for evaluating your own data protection measures Technology to help preserve client confidentiality

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The Whole Lawyer: Confidentiality
Seven Steps to Going Solo

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Instructors
Joshua Lenon
• Lawyer in Residence at Clio
• Attorney Admitted in New
York
• @JoshuaLenon

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Instructors
Alli Gerkman
• Director, Educating
Tomorrow's Lawyers
• Attorney Admitted in
Colorado
• @AlliGerkman

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Agenda
• Foundations for Practice study (15 minutes)
• Lack of privacy (10 minutes)
• Lawyer’s duty of privacy (15 minutes)
• Discretion (10 minutes)
• Questions (10 minutes)

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FOUNDATIONS FOR PRACTICE STUDY

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
9
Alli Gerkman
Director, Educating Tomorrow’s Lawyers

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
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www.foundationsforpractice.com
Twitter: @AlliGerkman
Email: Alli.Gerkman@du.edu

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
40%
Percentage of 2015 law graduates who did not land full-
time employment requiring bar passage
Credit: ABA Employment Survey

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
30%
Percentage of 2015 law graduates who did not land full-
time employment recognizing law degree
Credit: ABA Employment Survey

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
25%
Percentage of 2015 law graduates who did not land full-
time employment (including professional and non-
professional)
Credit: ABA Employment Survey

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
71%
Percentage of third-year law students who believe they
have sufficient skills to practice
Credit: BARBRI, State of the Legal Field Survey

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
45%
Percentage of law professors who believe new lawyers
have sufficient skills to practice
Credit: BARBRI, State of the Legal Field Survey

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
23%
Percentage of practitioners who believe new lawyers
have sufficient skills to practice
Credit: BARBRI, State of the Legal Field Survey

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
1. Identify the
foundations entry-
level lawyers need
2. Develop
measurable models
of legal education
that support those
foundations
3. Align market
needs with hiring
practices to
incentivize positive
improvements

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
The number of states that distributed the
survey
37

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
24,137
The number of valid responses to the
survey

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
147
The number of foundations we asked
about

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
Initiative
Identify relevant facts, legal
issues
Make decisions and deliver results
Conduct and defend
depositions
Critically evaluate
arguments
Diligence
Integrity and trustworthiness
Work as part of a team
Listen attentively and respectfully

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
Initiative
Identify relevant facts, legal
issues
Make decisions and deliver results
Conduct and defend
depositions
Critically evaluate
arguments
Diligence
Integrity and trustworthiness
Work as part of a team
Listen attentively and respectfully

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
Short
Term

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
Short
Term
Over
Time

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
Short
Term
Over
Time
Advantageo
us

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
Short
Term
Over
Time
Advantageo
us
Not
Relevant

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
77
The number of foundations identified as “Necessary in
the Short Term” by 50% or more of the respondents

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© 2016 IAALS – Institute for the Advancement of the American Legal System.

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
1. Keep information confidential
2. Arrive on time
3. Honor commitments
4. Integrity and trustworthiness
5. Treat others with courtesy and respect
6. Listen attentively and respectfully
7. Respond promptly
8. Diligence
9. Strong work ethic
10.Attention to detail
11.Conscientiousness
12.Common sense
13.Intelligence
14.Research the law
15.Take individual responsibility
16.Emotional regulation/self-control
17.Speak professionally
18.Strong moral compass
19.Write professionally
20.Exhibit tact and diplomacy
Foundations for Practice

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
1.Keep information confidential
2. Arrive on time
3. Honor commitments
4. Integrity and trustworthiness
5. Treat others with courtesy and respect
6. Listen attentively and respectfully
7. Respond promptly
8. Diligence
9. Strong work ethic
10.Attention to detail
11.Conscientiousness
12.Common sense
13.Intelligence
14.Research the law
15.Take individual responsibility
16.Emotional regulation/self-control
17.Speak professionally
18.Strong moral compass
19.Write professionally
20.Exhibit tact and diplomacy
Foundations for Practice

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
1. Keep information confidential
2. Arrive on time
3. Honor commitments
4. Understand and apply legal privilege
5. Proper timekeeping/billing
6. Document and organize a case/matter
7. Show loyalty and dedication
8. Set clear professional boundaries
9. Handle dissatisfaction appropriately
10.Recognize and resolve ethical
dilemmas
11.Conclude relationships appropriately
12.Exercise independent judgment
13.Adhere to proper collections
practices
14.Provide high quality legal advice
Professionalism

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
1. Keep information confidential
2. Arrive on time
3. Honor commitments
4. Understand and apply legal privilege
5. Proper timekeeping/billing
6. Document and organize a case/matter
7. Show loyalty and dedication
8. Set clear professional boundaries
9. Handle dissatisfaction appropriately
10.Recognize and resolve ethical
dilemmas
11.Conclude relationships appropriately
12.Exercise independent judgment
13.Adhere to proper collections
practices
14.Provide high quality legal advice
Professionalism

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
Keep info confidential

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
Keep info confidential
Firms, 1-10All Respondents

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© 2016 IAALS – Institute for the Advancement of the American Legal System.
35
www.foundationsforpractice.com
Twitter: @AlliGerkman
Email: Alli.Gerkman@du.edu

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LACK OF PRIVACY

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Nearly half of Americans (45 %)
have been notified that their information
could have been affected by a data breach.

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Almost three-quarters (74 %)
say they worry about the security of
Their personal information while shopping on-line.

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Privacy Breaches Increasing
0
50
100
150
200
250
300
350
2005 2006 200 2008 2009 2010 2011 2012 2013 2014 2015
Reported Breaches
Source: Identity Theft Resource Center

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Lawyers are Trusted (More than Some)
80% trust Doctors to tell the truth
70% trust Teachers to tell the truth
42% trust Lawyers to tell the truth
Source: UK Legal Services Board

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LAWYER’S DUTY OF PRIVACY

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Confidentiality & Privacy for Lawyers
4 Considerations When it Comes to
Confidentiality and Privacy for Lawyers:
1. Evidentiary
2. Ethics
3. Statutory
4. Technology

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Evidentiary
• Attorney-Client Confidentiality
• Word-Product Doctrine

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Attorney-Client Privilege
“encourage[s] full and frank communication between
attorneys and their clients.” Upjohn Co. v. United
States, 449 U.S. 383 (1981).

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Attorney-Client Privilege
• Limited to communications between the client and attorney
• Privilege rests with the client; even beyond the grave, Swidler & Berlin v.
United States, 524 U.S. 399 (1998)
• Waiver possible
• Inadvertent disclosures is not necessarily waiver, if:
– the disclosure is inadvertent;
– the holder of the privilege or protection took reasonable steps to prevent
disclosure; and
– the holder promptly took reasonable steps to rectify the error

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Work Product Doctrine
Federal Rules of Civil Procedure Rule 26(b)(3)
• “Ordinarily, a party may not discover documents and tangible things
that are prepared in anticipation of litigation...“
• Materials may be discovered if the party shows that it has substantial
need for the materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other means.

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MRPC Rule 1.6
(a) A lawyer shall not reveal information relating to the
representation of a client unless the client gives informed
consent, the disclosure is impliedly authorized in order to
carry out the representation or the disclosure is permitted by
paragraph (b).

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MRPC Rule 1.6(b)
• prevent reasonably certain death
or substantial bodily harm
• prevent the client from
committing a crime or fraud
• prevent, mitigate or rectify
substantial injury to the financial
interests or property of another
• secure legal advice about the
lawyer's compliance with these
Rules
• establish a claim or defense on
behalf of the lawyer
• comply with other law or a court
order
• detect and resolve conflicts of
interest

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MRPC 1.6
(c) 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.

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California Business and Professions Code §6068
(e) (1) To maintain inviolate the confidence, and at every peril to himself
or herself to preserve the secrets, of his or her client.

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Privacy is created by statute.

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Privacy
• Personally Identifiable information (PII)
1. Information that can be used to distinguish or trace an individual‘s
identity
• Name, social security number, date and place of birth, mother‘s maiden
name, or biometric record
2. Other information that is linked or linkable to an individual
• Medical, educational, financial, and employment information.

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Android ID +
GPS data +
Video viewing information
= PII
Yershov v. Gannett Satellite Information
Network Inc., No. 15-1719 (1st Cir. Apr.
29, 2016)
Video Privacy Protection Act (VPPA)

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Privacy regulations govern
by geography and subject matter.

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Privacy Laws Scope
State Privacy
Laws
Business
Area
Privacy
Laws
Federal
Regulations

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State Privacy Laws
Think broadly, it’s not just
your location, but the
location of all of your clients
and contacts

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Privacy
• Notification duties in the event of a breach
–Must notify all affected parties
• Reporting duties to regulators
• Right of action for impacted individuals

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Canada Privacy Law
• Government Limits
– Privacy Act
– Access to Information Act
– Freedom of Information Act
– Freedom of Information and Protection of Privacy Act (FOIPPA)
• Private Company Limits
– Personal Information Protection and Electronic Documents Act (PIPEDA)
– Canada Anti-Spam Legislation (CASL)

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Business Areas
• Financial information – under the
Gramm Leach Bliley Act (GLBA), Fair
Credit Reporting Act (FCRA), Fair and
Accurate Credit Transaction Act
(FACTA), Red Flags Rules
• Healthcare information – under the
Health Insurance Portability and
Accountability Act (HIPAA) and the
HITECH Act
• Children information – as required
under the Children Online Privacy
Protection Act (COPPA) and Family
Educational Rights and Privacy Act
(FERPA)
• Mortgage lending – under Consumer
Finance Protection Board, Bulletin
2012-03
• Criminal Justice - Criminal Justice
Information Services Division (CJIS)

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HIPAA Fines
HIPAA Violation Minimum Penalty Maximum Penalty
Individual did not know (and by
exercising reasonable diligence would
not have known) that he/she violated
HIPAA
$100 per violation, with an annual
maximum of $25,000 for repeat
violations (Note: maximum that can be
imposed by State Attorneys General
regardless of the type of violation)
$50,000 per violation, with an annual
maximum of $1.5 million
HIPAA violation due to reasonable cause
and not due to willful neglect
$1,000 per violation, with an annual
maximum of $100,000 for repeat
violations
$50,000 per violation, with an annual
maximum of $1.5 million
HIPAA violation due to willful neglect but
violation is corrected within the required
time period
$10,000 per violation, with an annual
maximum of $250,000 for repeat
violations
$50,000 per violation, with an annual
maximum of $1.5 million
HIPAA violation is due to willful neglect
and is not corrected
$50,000 per violation, with an annual
maximum of $1.5 million
$50,000 per violation, with an annual
maximum of $1.5 million

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FTC & Cybersecurity
Federal Trade Commission (FTC)
• Established in 1914 by the Federal Trade Commission Act
• Section 5 of the Federal Trade Commission Act, 15 U.S.C. §
45 grants the FTC power to investigate and prevent unfair or
deceptive trade practices (UDAP Authority)
• 50 cybersecurity enforcement actions since 2002

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Federal Trade Commission v. Wyndham
Worldwide Corp., 799 F.3d 236, (3d Cir. 2015)

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FTC’s Standard of Care
Take “reasonable and
necessary measures” to
protect consumer data

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Privacy Safeguards
3 types of safeguards must be considered and
implemented
1. Administrative
2. Physical
3. Technical

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Lack of technological competency
leaves law firms vulnerable to
inadvertent disclosures.

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Law Firms Current Security
• 27% have no encryption implemented
• Only 49% have intrusion detection system
• Only 49% have intrusion prevention system
• 39% never have outside security assessments performed
• 27% use two-factor authentication
• Only 5% have server logs
Source: 2015 ILTA Tech Survey

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Cloud Secures Law Firms
• 256-bit SSL Encryption
• SOC II-Certified Data Center
• Geo-redundancy
• 3rd Party Audits on Security Settings
• User-level Permissions and Access Control
• PCI Compliance for Credit Cards
• Encrypted Communication with Clients via Client Portal

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Use Confirmed Technology

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Secure Connections
39% of lawyers
use public WIFI.
Only 22% use SSL encryption
on that connection.

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Control Access to Data Sensibly

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Make it Hard to Unlock

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Monitor Access

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Use Secure Communication Channels

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DISCRETION

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Discretion is the better part of valor definition.
Caution is preferable to rash bravery.
Falstaff
King Henry the Fourth, Part One
William Shakespeare.

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Common Sense

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Discretion
• Think like your client
• Act with competency
• Adjust your personal habits

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QUESTIONS

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Thank You
Joshua Lenon
joshua@clio.com
@JoshuaLenon
Linkedin.com/in/joshualenon
1-888-858-2546
Colin McMahon
Linkedin.com/in/colinmcmahonclio
Support@clio.com
Support.clio.com
www.youtube.com/user/ClioVideo