Recent Developments: Protecting Client Information Stored on an Attorney’s Smartphone and Other Advice from the New York State Bar Association

In this article, we review three recent ethics opinions, two from the New York State Bar Association Professional Ethics Committee and one from the New York Bar Association Professional Ethics Committee (respectively , the New York State Bar Committee and the New York Bar Association). Committee). Since readers of this column may have noticed in the past that these columns are not always entirely complimentary about the opinions expressed by committees, it is important to note at the outset that the three opinions discussed here are well-crafted. and offer practitioners genuinely useful advice on topics that arise quite frequently in practice.

Obligation to protect client information stored on a lawyer’s smartphone. In its Opinion 1240, issued on April 22, 2022, the NYS Bar Committee addresses the common problem of what attorneys should do when seeking to download an application that, during the download selection process, asks if the lawyer gives consent for the app—and possibly others—to access the lawyer’s contacts stored on the smartphone. The notice answers the question of whether the lawyer can consent to such access. The summary of the review states:

If the “contacts” on a lawyer’s smartphone include a client whose identity or other information is confidential under Rule 1.6, the lawyer cannot consent to sharing contacts with a smartphone app to unless it concludes that no human being will see this confidential information, and that the information will not be sold or transferred to additional third parties, without the customer’s consent.