Attorneys must keep records of the work they perform on behalf of clients. Client files will include copies of correspondence, lawyer notes, and drafts of documents created in the client’s legal matter. However, storing client files can create liability considerations for attorneys since ethics rules require lawyers to keep the contents of client files confidential. Maintaining the confidentiality of client files has become increasingly challenging as lawyers and law firms have moved towards fully electronic offices.
Ethical and Legal Obligations
Storing files can create liability considerations for attorneys due to the lawyer’s ethical obligation to maintain the confidentiality of the attorney-client relationship. Each state’s bar has adopted an ethical rule similar to ABA Model Rule 1.6, which governs an attorney’s obligations to maintain confidentiality of the client’s information. However, attorneys may also keep client files that trigger other legal obligations to maintain confidentiality. For example, an attorney may have copies of a client’s health records. Various states also have laws requiring businesses to keep personally identifying information secure.
Digital Storage and Cybersecurity Risks
Law firms may face significant cybersecurity risks as they shift towards fully electronic systems and storing files through cloud-based solutions. Attorneys and firms who choose to store electronic files locally in the office may face the possibility of hacking or phishing attempts to gain access to the firm’s databases. Alternatively, hackers may install ransomware on a firm’s computer systems, locking staff out from accessing client files. Electronic files may also leak out of the firm inadvertently, such as when an employee includes the wrong person on an email thread or copies electronic files to their personal email or computer.
Firms that use cloud storage solutions must carefully evaluate service providers to ensure they work with a platform that uses the latest cybersecurity technology and practices.
Physical Storage Concerns
Law firms that continue to store physical copies of client files may have other liability concerns. For example, physical files risk loss or damage due to building fires or water damage from leaking roofs or floods. Furthermore, bad actors can steal physical files if they access a firm’s storage facility. Firms must keep client files in secure cabinets, ideally fireproof and equipped with alarms to warn of unauthorized access. Firms that have significant amounts of physical files to store may designate specific rooms in the office to serve as file storage rooms; security measures for such rooms can include keycode or keycard access that allows the firm to monitor who enters the room, which can help with investigations into lost files.
Best Practices to Mitigate Liability
Other best practices that firms can adopt to manage liability risks from file storage include:
- Implementing a file retention and destruction policy
- Using reputable cloud storage providers that comply with applicable laws and regulations
- Regularly updating cybersecurity protocols and training staff on best practices
- Maintaining applicable insurance coverage, such as cyber liability insurance
Contact WILMIC Today
Attorneys need liability insurance tailored to the risks of storing client files, especially as law offices become increasingly paperless. Contact WILMIC today for an initial consultation to discuss your insurance needs and learn more about our services.