New York Bar Ethics Notice on Privacy and Smartphones

On April 8, 2022, the New York Bar issued a opinion to protect “confidential” client identity information stored on a lawyer’s smartphone. In particular, the notice prohibits an attorney who stores “confidential” identity information (as defined in Rule 1.6 of the New York Rules of Professional Conduct) in the attorney’s “contacts” folder on the smartphone of the lawyer to agree to share their “contacts” with a smartphone application, unless certain criteria are met.

The opinion is based on Rule 1.6(c), which provides that a lawyer is required to “make reasonable efforts” to prevent the disclosure of “confidential” client information. The notice explains that before a lawyer grants access to their smartphone’s contacts file, the lawyer must first determine whether any contact information is “confidential” client information within the meaning of the rule 1.6. If client names constitute “confidential” information, the notice states that a lawyer must “make reasonable efforts to prevent unauthorized access by others to such names, whether stored in hard copy form in a binder, on a smartphone or in any other electronic or paper form.

If the lawyer’s smartphone “contacts” folder contains “confidential” client information, the lawyer may not consent to sharing the contacts folder with a smartphone app, unless the lawyer determines that (1 ) no one will see the information and (2) the information will not be sold or transferred to additional third parties, without the customer’s consent.

Copyright © 2022, Hunter Andrews Kurth LLP. All rights reserved.National Law Review, Volume XII, Number 108

Lance B. Holton