Privacy & Cybersecurity Law Blog

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

The opinion is based on Rule 1.6(c), which provides that an attorney is required to “make reasonable efforts” to prevent the disclosure of “confidential” client information. The opinion explains that, before an attorney grants access to his or her smartphone’s contacts folder, the attorney must first determine whether any contact information is “confidential” client information within the meaning of Rule 1.6. If clients’ names constitute “confidential” information, the opinion states that an attorney must “make reasonable efforts to prevent the unauthorized access of others to those names, whether stored as a paper copy in a filing cabinet, on a smartphone, or in any other electronic or paper form.”

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