For some lawyers, the past few years have been difficult, in large part due to the trying economic times. For that reason, many lawyers have sought out ways to reduce costs and increase profits. One of the best ways to do so is to decrease overhead by sharing office space with other attorneys.
Of course, when independent lawyers share office space and resources, a host of ethical issues can be triggered, including those revolving around confidentiality. Fortunately, the New York State Bar Association’s Committee on Professional Ethics was recently asked to address this issue in Opinion 939 (10/16/12).
Specifically, the inquiring attorney asked whether it was ethically permissible for private lawyers to share office space where they also share a computer for confidential, client-related information, but use separate, private administrative passwords to access the computer.
The committee began by examining confidentiality requirements as set forth in Rule 1.6(a) of the Rules of Professional Conduct, noting that lawyers may not knowingly reveal confidential client information — an obligation that, among other things, requires lawyers to take reasonable care to avoid improper disclosure by the lawyers themselves as well as those working for them.
The next part of the committee’s analysis addressed an attorney’s ethical obligation to preserve client confidentiality when utilizing new technologies. The committee explained that lawyers must take reasonable precautions to ensure that privacy is maintained: “When a lawyer uses a particular technology to store or transmit confidential information, the degree of care that is required may depend on factors such as the security of that technology and the sensitivity of the information.
“If the technology, taking into account legal as well as technological safeguards, does not provide a reasonable expectation that confidentiality will be protected; if circumstances put the lawyer on notice of a heightened risk that confidentiality may be compromised; or if the information is extraordinarily sensitive, then further security measures may be required.”
Then the committee applied that standard to the facts of the case at hand, concluding attorneys sharing office space and a computer protected by separate passwords may sometimes be ethical.
In other words, it depends on the specific facts of each particular office set up: “Some password systems may be more resistant to unauthorized access than others. Protection of the password is also important; for example, a password kept on a piece of paper stuck to the computer and readily visible to any user does not provide much protection. On the other hand, if a robust password system provides a degree of protection similar to that of locked file cabinets, then its proper and consistent use may well constitute reasonable care.”
The committee then explained that the Rules of Professional conduct do not require attorneys to “preserve confidentiality at all costs.” Instead, the rules require that lawyers protect client confidentiality by exercising reasonable care under the circumstances.
Accordingly, the committee concluded that “(l)awyers practicing as sole practitioners but sharing space may share a computer to store and process client confidential information, but only if, under the actual circumstances relating to the computer, including its software and passwords and their use, the lawyers take reasonable precautions to ensure that the privacy of the confidential information is protected.”
So, as is often the case when it comes to ethics, the answer to whether it is permissible to share office space and computers is: it depends. The key to successfully walking this ethical line is to ensure that lawyers who share office space and also share a computer have in place procedures to protect confidential client information.
Accordingly, in both this case and in general, a little technological know how, common sense and reasonable care will go a long way to preserve client confidences.
The Hon. John E. Bernacki is a Pittsford Town Court Justice. His law firm, John E. Bernacki Jr. PC, is located in Pittsford. He can be reached at www.johnbernackilaw.com.