Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

CybersecurityFeaturesBar AssociationsLegal Ethics and Attorney DisciplineTechnology Media and TelecomCybersecurity Law & Strategy

Worried About Complying with ABA Opinion 483 on Cybersecurity? Fear No More

By Larry J. Hershman and Jeffrey S. Brenner
December 01, 2018

In response to the omnipresent threat of cyberattacks, on Oct. 16, the American Bar Association Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 483. The Opinion addresses the obligations imposed upon lawyers to safeguard their clients' data and to notify them of a data breach. While the ABA meticulously listed the six Model Rules which support its conclusions that lawyers have a duty to become proficient in cybersecurity, it did not identify how to achieve compliance. This article bridges that gap.

Cybersecurity Obligations Under Formal Opinion 483

The Opinion relies upon ABA Model Rules of Professional Conduct Rule 1.1 (competence), Rule 1.4 (communications), Rule 1.6 (confidentiality of information), Rule 1.15 (safekeeping property), Rule 5.1 (responsibilities of a partner or supervisory lawyer), and Rule 5.3 (responsibilities regarding nonlawyer assistance) to conclude that a lawyer must take reasonable steps to monitor for a data breach, to stop it when it happens, to restore the systems after a breach, to determine what occurred, and to provide notice of the breach if it materially affects the lawyer's ability to represent the client.

When a breach of protected client information is either suspected or detected, Model Rule 1.1 requires the lawyer act reasonably and promptly to stop the breach and mitigate damage resulting from the breach.

This premium content is locked for Cybersecurity Law & Strategy subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
The DOJ's Corporate Enforcement Policy: One Year Later Image

The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.

The DOJ's New Parameters for Evaluating Corporate Compliance Programs Image

The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.

Use of Deferred Prosecution Agreements In White Collar Investigations Image

This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.

Bankruptcy Sales: Finding a Diamond In the Rough Image

There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.

A Lawyer's System for Active Reading Image

Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.