For the Defense - Vol. 6 Issue 3 - 9

THE ETHICAL OBLIGATION TO PROTECT
YOUR CLIENT'S INFORMATION FROM
CYBER-ATTACK: NOT JUST A BIG FIRM
PROBLEM
ne quality of a good criminal defense lawyer
is a healthy fear of the unknown. A defense
lawyer should always be thinking: How does this
piece of evidence come back to hurt my client? How
does the government turn this argument to my client's
disadvantage? How do I pivot if the Court won't give our
theory of defense instruction? The road to an acquittal is
paved with these anxious moments of imagining all the
ways that things can go wrong.
This applies out of court also. Every time I send an email,
I get a panicky feeling that I have sent it to the wrong
person, sent the wrong document, or unintentionally cc'd
a different client, risking the protection of attorney-client
privilege. But these dangers are nothing compared to the
risk attendant on opening an email and clicking on an
attachment that contains malware. These emails, known
as " phishing emails, " come through my spam filter
multiple times a week - sometimes even multiple times a
day. Some pretend to come from legitimate institutions,
law firms, or colleagues that have me in their contact
list. These emails may reference invoices, payments, or
other enticing documents that are attached, all with an
appearance of legitimacy that is uncanny.
O
Ellen Brotman
Though time consuming, I know never to open an
attachment without checking with the sender to ensure
that it is legitimate. If you read no further, this is the one
piece of advice I hope you will apply to your practice:
Do not click on an email attachment without vetting
the sender and making sure that everyone in your office
is trained to do this also. Otherwise, you are at risk of
joining the swelling ranks of businesses, government
agencies, and law firms that have been the victims of
ransomware attacks, disrupting their ability to work, and
putting the confidential information of their clients at
risk.
A failure to take this problem seriously could also
cause you to violate your obligation of competent
representation, under Rule of Professional Conduct 1.1,
and your obligation to protect client confidences under
Rule of Professional Conduct 1.6. RPC 1.1, Comment
8 addresses this
directly: " To maintain the requisite
knowledge and skill, a lawyer should keep abreast of
changes in the law and its practice, including the benefits
and risks associated with relevant technology ... . " RPC
1.6 (d) also states: " A lawyer shall make reasonable efforts
Vol. 6, Issue 3 l For The Defense 9

For the Defense - Vol. 6 Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 6 Issue 3

Contents
For the Defense - Vol. 6 Issue 3 - 1
For the Defense - Vol. 6 Issue 3 - 2
For the Defense - Vol. 6 Issue 3 - Contents
For the Defense - Vol. 6 Issue 3 - 4
For the Defense - Vol. 6 Issue 3 - 5
For the Defense - Vol. 6 Issue 3 - 6
For the Defense - Vol. 6 Issue 3 - 7
For the Defense - Vol. 6 Issue 3 - 8
For the Defense - Vol. 6 Issue 3 - 9
For the Defense - Vol. 6 Issue 3 - 10
For the Defense - Vol. 6 Issue 3 - 11
For the Defense - Vol. 6 Issue 3 - 12
For the Defense - Vol. 6 Issue 3 - 13
For the Defense - Vol. 6 Issue 3 - 14
For the Defense - Vol. 6 Issue 3 - 15
For the Defense - Vol. 6 Issue 3 - 16
For the Defense - Vol. 6 Issue 3 - 17
For the Defense - Vol. 6 Issue 3 - 18
For the Defense - Vol. 6 Issue 3 - 19
For the Defense - Vol. 6 Issue 3 - 20
For the Defense - Vol. 6 Issue 3 - 21
For the Defense - Vol. 6 Issue 3 - 22
For the Defense - Vol. 6 Issue 3 - 23
For the Defense - Vol. 6 Issue 3 - 24
For the Defense - Vol. 6 Issue 3 - 25
For the Defense - Vol. 6 Issue 3 - 26
For the Defense - Vol. 6 Issue 3 - 27
For the Defense - Vol. 6 Issue 3 - 28
For the Defense - Vol. 6 Issue 3 - 29
For the Defense - Vol. 6 Issue 3 - 30
For the Defense - Vol. 6 Issue 3 - 31
For the Defense - Vol. 6 Issue 3 - 32
For the Defense - Vol. 6 Issue 3 - 33
For the Defense - Vol. 6 Issue 3 - 34
For the Defense - Vol. 6 Issue 3 - 35
For the Defense - Vol. 6 Issue 3 - 36
For the Defense - Vol. 6 Issue 3 - 37
For the Defense - Vol. 6 Issue 3 - 38
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For the Defense - Vol. 6 Issue 3 - 40
For the Defense - Vol. 6 Issue 3 - 41
For the Defense - Vol. 6 Issue 3 - 42
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