Can solo lawyers who share office space also share one computer for confidential client information if they have separate passwords?

Plain-English summary

Two private lawyers share office space but are not partners or one firm. They share a single computer for client-related information, each with a separate administrative password the other does not know, and keep separate paper files. The committee concludes they may share the computer for confidential information only if they exercise reasonable care to prevent disclosure.

The committee grounds the analysis in Rule 1.6(a) (a lawyer shall not knowingly reveal confidential information) and Rule 1.6(c) (reasonable care to prevent disclosure by others). It notes the duty of reasonable care extends to the lawyer's own conduct, not just oversight of others, citing ABA Formal Op. 11-459 (competence requires protecting confidentiality) and N.Y. City 1994-11. The required degree of care depends on factors such as the security of the technology and the sensitivity of the information; if the technology does not give a reasonable expectation of protected confidentiality, if circumstances signal heightened risk, or if the information is extraordinarily sensitive, further measures may be required (Rule 1.6 Comment [17]; N.Y. State 842; N.Y. State 709).

Applying that to the facts, the committee finds them insufficient to decide. Separate passwords are an appropriate precaution, but whether they are sufficient depends on further factors: some password systems resist unauthorized access better than others, and password protection matters (a password on a note stuck to the computer protects little). If a robust password system gives protection similar to locked file cabinets, its proper and consistent use may well be reasonable care. The committee stresses the obligation is not to guarantee confidentiality at all costs, but to protect it by taking reasonable care.

In practice

The opinion holds that, under the New York rules as they stood in 2012, office-sharing solo lawyers may share a computer for client confidences if their actual security measures amount to reasonable care under Rule 1.6(c). The committee identifies the controlling factors as the strength of the password system and how carefully the passwords are protected and used, judged against the sensitivity of the information; it declined to bless the specific setup because the facts given did not show enough about those measures.

Common questions

Q: Can lawyers who share an office share one computer for client files?

A: Yes, with reasonable care. Per paragraph 7, sole practitioners sharing space may share a computer for confidential information only if, under the actual circumstances, they take reasonable precautions to protect privacy.

Q: Are separate passwords enough?

A: Not automatically. Per paragraph 6, separate passwords are an appropriate precaution, but sufficiency depends on the robustness of the password system and how the passwords are protected and used.

Q: What standard governs the duty?

A: Reasonable care, not a guarantee. Per paragraph 6, the obligation is to protect confidentiality by taking reasonable care, not to ensure it against every possible breach.

Background and rules framework

The opinion interprets New York Rule 1.6(a) and (c) (Model Rule 1.6, confidentiality and the duty of reasonable care to prevent disclosure, including by the lawyer's own conduct). It draws on Rule 1.6 Comment [17] and prior opinions for how the required care scales with the technology's security and the sensitivity of the information.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / NY Rule 1.6(a), (c) (confidentiality; reasonable care to prevent disclosure)

Other opinions cited:

• ABA Formal Op. 11-459: competence requires acting to protect the confidentiality of client information.
• N.Y. State 842 (2010) and N.Y. State 709 (1998): reasonable care to protect confidential information stored or transmitted electronically.
• N.Y. City 1994-11: duty to secure client confidences against misuse or inappropriate disclosure.

See also

• NY State Bar Op. 940: Off-site backup tapes and retaining records in original form
• NY State Bar Op. 950: Destroying paper mail and keeping electronic copies
• NY State Bar Op. 1019: Remote access to firm files from home

Source

• Landing page: https://nysba.org/ethics-opinion-939/