What Are the Ethical Implications of Using Online Meeting Platforms?
COVID-19 caused a dramatic increase in the legal industry’s use of online meeting platforms such as Zoom, Skype, and GoToMeeting. The trend of conducting virtual hearings, mediations, arbitrations, depositions, and communicating with clients will likely continue. Online meeting platforms provide a host of tools and security features beyond conducting a videoconference. For example, Zoom allows participants to share their screens, send files, send chats to all or certain participants during the videoconference, assign participants to “breakout rooms,” require participants to wait in a virtual waiting room before the host admits them to the videoconference, and set meeting passwords. California lawyers who fail to use these tools properly or fail to implement reasonably appropriate security features risk exposing confidential client communications and information.
The duty of confidentiality, set forth in Business & Professions Code section 6068, subdivision (e)(1), and rule 1.6 of the California Rules of Professional Conduct, requires attorneys to preserve their clients’ secrets “at every peril.” California State Bar Ethics Opinion, No. 2010-179, best summarizes what the duties of confidentiality and competence require in the context of using technology in representing clients:
“An attorney’s duties of confidentiality and competence require the attorney to take appropriate steps to ensure that his or her use of technology in conjunction with a client’s representation does not subject confidential client information to an undue risk of unauthorized disclosure. Because of the evolving nature of technology and differences in security features that are available, the attorney must ensure the steps are sufficient for each form of technology being used and must continue to monitor the efficacy of such steps.”
The same ethics opinion provides that before using technology in the course of representing a client, an attorney must take appropriate steps to evaluate: (1) the level of security attendant to the use of that technology, including whether reasonable precautions may be taken when using the technology to increase the level of security; (2) the legal ramifications arising from a third party who intercepts, accesses, or exceeds authorized use of the electronic information; (3) the degree of sensitivity of the information; (4) the possible impact on the client of an inadvertent disclosure of privileged or confidential information or work product; (5) the urgency of the situation; and (6) the client’s instructions and circumstances, such as access by others to the client’s devices and communications.
As the use of online meeting platforms to communicate becomes the norm, lawyers should consider whether using videoconferences to communicate is necessary or just convenient, and whether there are more secure ways to communicate with clients and transmit confidential information. Lawyers should ensure they understand the risks of using virtual platforms to communicate, inform clients of those risks, and obtain consent to use the platforms. The duties of competence and confidentiality require lawyers to familiarize themselves with the security features of the chosen online meeting platform and implement those features as necessary. Finally, as companies continue updating their meeting platforms to meet users’ needs, lawyers should remain apprised of the updated features and their risks. Failure to learn the technology and take reasonable precautions could lead to an unintended disclosure of confidential client communications and information.
Thank you to Amy Nguyen for authoring this with me.
Mark Wilson, a trial attorney, has won nearly every case he has tried or arbitrated. He lost only one jury trial and obtained a complete reversal on appeal. Mr. Wilson represents clients in business litigation and legal malpractice cases and was named in the 2017 – 2020 Super Lawyers® Top 50 Orange County lists. Mr. Wilson is a California State Bar certified specialist in Legal Malpractice Law and can be reached at 949-631-3300; [email protected]; https://www.kleinandwilson.com