In order to comply with this rule, lawyers must take reasonable steps to protect client information.
By Josh Roberts
JBA Litigation Section chair
Returning to work Downtown on the first Wednesday following Hurricane Irma, for most people, it was if it never happened.
City officials and volunteers brought the city back to life seemingly overnight. The gazebo on the Northbank Riverwalk at the end of Hogan Street no longer was underwater. There was barely a trace that the river once flowed into East Bay Street.
But as the images of flooded streets begin to fade, thousands of Hurricane Irma’s local victims are still fighting to climb out of the storm’s destructive wake.
This includes a great number of tenants that were displaced by the temporary shuttering of Wells Fargo Center — one of Downtown’s most iconic buildings.
It is commonly known as the Independent Life Building, the Modis Building, or the Wells Fargo Building, largely depending on your generation. And it is home to The Jacksonville Bar Association, The River Club, many of the city’s most prominent law firms and attorneys, and legal services companies such as Threshold Discovery.
With the initial news that tenants of the building might not have access to their offices for weeks or even months, hundreds of attorneys scurried to secure temporary office space. But in addition to locating space that was available, sufficient in size, and affordable, attorneys had to ensure that their temporary office arrangements did not run afoul of ethics rules regarding client confidentiality.
According to Rule 4-1.6 of the Rules Regulating The Florida Bar, with a few exceptions, a lawyer must not reveal information relating to representation of a client, unless the client gives informed consent.
This rule applies to all information relating to the representation of a client, whatever its source, and not just as to matters communicated in confidence by the client.
In order to comply with this rule, lawyers must take reasonable steps to protect client information. While sharing office space with unaffiliated attorneys or with non-attorneys is permitted, doing so presents several unique considerations. The risk is heightened further when two law firms share space and could possibly represent adverse parties.
First, an attorney sharing space with others must ensure that no one from the other firm or business has access to the attorney’s client files. See Fla. Bar Ethics Op. 88-15. An attorney may seek to comply with this requirement by keeping files in locked cabinets or in rooms to which employees from the other firm or business do not have access.
Second, an attorney must take reasonable steps to ensure that others do not overhear confidential information or attorney-client conversations. When sharing space, attorneys must think twice before discussing their cases or clients in the hallway, break room, or even in offices with thin walls.
In a complaint brought by The Florida Bar, the referee recommended that an attorney be found guilty of violating Rule 4-1.6 for failing to secure law office files and for maintaining an office with acoustical problems. The Fla. Bar v. Wolding, 579 So. 2d 736, 737 (Fla. 1991).
The Florida Supreme Court ultimately held that the attorney did not violate Rule 4-1.6, as no actual disclosures of confidential client information occurred, there was no evidence that employees of the other business actually went into law office files without permission, and the ability to overhear conversations involved instances of shouting.
However, had there been evidence of the actual disclosure of confidential information or the ability to overhear normal conversations, the court may have been more likely to adopt the recommendation of the referee.
The alleged violation in the Wolding case — easily accessed client files and acoustical deficiencies — can be readily identified and avoided when an attorney shares space with others. The more difficult issues arise in the context of technology and electronic data.
According to The Florida Bar, a lawyer who chooses to use devices that store electronic data must take reasonable steps to ensure that client confidentiality is maintained and that the device is sanitized before disposition. See Fla. Bar Ethics Op. 10-2.
Many attorneys may be surprised to learn that devices such as printers, copiers, scanners, flash drives, memory sticks, facsimile machines and other electronic or digital devices often contain hard drives or other data storage media that can store information. Id. “For example, when a lawyer copies a document using a photocopier that contains a hard drive, the document is converted into a file that is stored on the copier’s hard drive. This document usually remains on the hard drive until it is overwritten or deleted.” Id.
Ignorance is not bliss. Attorneys have a duty of competence to understand and adapt to these technologies.
When sharing office space with other law firms or businesses, lawyers obviously should not leave their computers on, unlocked and visible. They should not leave client files in open areas or easily accessible. And they should not have confidential conversations in non-private areas.
Attorneys must also analyze the risks of sharing printers, copiers, scanners, storage media, and common Wi-Fi computer networks. They should consider whether areas of the office are being recorded by audio visual equipment (which is common for security purposes), and take adequate precautions to ensure client confidentiality.
A few other considerations include the impression that attorneys sharing space are partners, referral fees among attorneys sharing offices, and representing adverse parties while sharing space.
In the wake of Hurricane Irma, many Jacksonville attorneys, for the first time, relied on temporary office-sharing arrangements, and others will no doubt at some time make their extra office space available to attorneys in need. This will require that a few extra precautions are taken to maintain client confidences.
Josh Roberts, executive partner of the Jacksonville office of Holland & Knight, is a business and real estate litigator.