What must a lawyer do to protect non-party clients' confidential data on a hard drive a court has ordered produced for forensic analysis?

Plain-English summary

The inquirer did transactional work for a client now in litigation over the transaction. A trial court ordered him to produce, for forensic analysis, a hard drive that contains data of that client (who has waived privilege) and also data of non-party clients who have not waived privilege or consented to disclosure.

The opinion starts from Rule 1.6(a)'s confidentiality duty and the Rule 1.6(b)(6) exception allowing disclosure to comply with other law or a court order. Whether other law supersedes Rule 1.6 is a question of law beyond the committee, but Rule 1.6(b)(6) provides a safe harbor once disclosure is required. Drawing on Comment [13] to Rule 1.6, the opinion explains that, absent the client's informed consent, the lawyer should assert nonfrivolous arguments against the order, and on an adverse ruling must consult the client under Rule 1.4 about an appeal or further challenge before complying.

The waiving client's consent does not relieve the lawyer of duties to the non-party clients. Under Rule 1.4 the lawyer must notify the affected non-waiving clients of the order and the extent to which their information may be reviewed (citing N.Y. City 2017-5 on the duty to advise a client when a device is seized). The opinion lists reasonable steps the lawyer should consider: agreed search terms with an ESI vendor, producing only the waiving client's segregable data, an attorneys'-eyes-only confidentiality order, appointment of a special master, in camera review, reargument proposing less intrusive means, a stay pending appeal, and appeal. It aligns this with N.Y. State 1198 (2020) and ABA Formal Opinion 473 (2016) on responding to subpoenas and court orders. After consulting the clients and taking reasonable but unsuccessful steps, the lawyer may comply under Rule 1.6(b)(6) and need not be held in contempt; the opinion adds that the better course is to seek a stay rather than simply postpone compliance, and notes the cost of opposing disclosure appears to fall on the attorney.

In practice

Under this opinion, a New York lawyer served with such an order must promptly tell the non-party clients, consult them, and pursue reasonable measures (search-term protocols, segregation, protective orders, special master, in camera review, reargument, stay, appeal) to avoid or narrow the production. Per the opinion, only after those steps are taken and fail may the lawyer comply in reliance on the Rule 1.6(b)(6) safe harbor, and seeking a stay is preferable to unilaterally postponing compliance.

Common questions

Q: Does a client's privilege waiver let the lawyer hand over the whole hard drive?

A: Per the opinion, no. The waiver does not lift the lawyer's duty to protect and notify the non-party clients whose confidential information is also on the drive.

Q: What must the lawyer do before complying with the order?

A: Per the opinion, notify the non-waiving clients, consult them, and take reasonable steps to avoid or limit production, such as search-term protocols, segregation, protective orders, in camera review, reargument, a stay, or appeal.

Q: Can the lawyer ever comply without violating confidentiality?

A: Per the opinion, yes. After taking reasonable but unsuccessful steps, Rule 1.6(b)(6) provides a safe harbor allowing compliance with the court order.

Background and rules framework

The opinion interprets New York Rule 1.6, including the confidentiality duty (Rule 1.6(a)) and the court-order exception (Rule 1.6(b)(6)) with Comments [12] and [13], together with the client-communication duties in Rule 1.4(a)(1) and (a)(3) and the informed-consent definition in Rule 1.0(j). Rules 1.6 and 1.4 correspond to ABA Model Rules 1.6 and 1.4.

Citations and references

Rules of Professional Conduct:

• New York Rules of Professional Conduct 1.0(j), 1.4(a)(1) & (a)(3), 1.6(a), 1.6(b)(6), 1.6 Cmts. [12], [13]
• ABA Model Rules 1.6, 1.4 (analogues)

Other opinions cited:

• N.Y. State 1198 (2020): former government lawyer responding to a subpoena or court order
• ABA Formal Opinion 473 (2016): responding to a subpoena for client information
• N.Y. State 1020 (2014), 940 (2012), 939 (2012), 842 (2010), 1057 (2015), 528 (1981); N.Y. City 2017-5

See also

• ABA Formal Op. 473: Subpoenas for Client Information
• NY State Bar Op. 1240: Sharing Contacts With an App
• ABA Formal Op. 483: Duties After a Data Breach

Source

• Landing page: https://nysba.org/ethics-opinion-1239/