Can a Pennsylvania lawyer keep client information on a smartphone with apps installed?
Apply this to your situation
This page answers the general question as of 2022. Ezel answers yours: whether it's allowed on your facts, under the current Pennsylvania Rules of Professional Conduct, with citations.
Plain-English summary
The opinion observes that smartphone apps, with the user's permission, can access a broad range of data, noting that "iOS (iPhone) and Android apps are capable of accessing a phone's microphone, cameras, images, location services, calendars, contacts, motion sensor, speech recognition and social media accounts." It adopts and extends the reasoning of NYSBA Formal Opinion 1240, which addressed contacts, and broadens the analysis to the other kinds of information apps can reach, applying Pennsylvania's rules.
The opinion stresses that Pennsylvania's confidentiality rule is broad. It explains that Rule 1.6 "differs from New York's Rule, and precludes a lawyer from revealing 'information relating to representation of [a] client,' which may be interpreted more broadly." Quoting Comment [4], it notes the prohibition "also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person." Under Comment [8] to Rule 1.1, the opinion ties this to competence: a lawyer must keep abreast of the benefits and risks of relevant technology.
The opinion concludes that the Rules permit lawyers to use smartphones and apps but require additional precautions. As it puts it, "in some circumstances, this may require lawyers (1) to decline to give certain permissions to certain apps, (2) to decline to install certain apps, or (3) to elect not to store information governed by Rule 1.6 on their smartphones."
In practice
Under this opinion, a Pennsylvania lawyer may keep client information on a smartphone but must take steps to prevent an app from disclosing information governed by Rule 1.6, which may mean declining specific app permissions, declining to install certain apps, or not storing such information on the phone at all. The opinion grounds these precautions in the duty of confidentiality under Rule 1.6 and the duty to understand relevant technology under Rule 1.1.
Common questions
Q: Can I use apps on a phone that has client information on it?
A: Yes. The opinion concludes the Rules permit lawyers to use smartphones and apps, but require additional precautions to protect Rule 1.6 information.
Q: When can I let an app access information related to a client?
A: The opinion concludes a lawyer may not consent to share Rule 1.6 information with an app unless the lawyer concludes that no human will view it and it will not be sold or transferred to additional third parties without the client's consent.
Q: Why does Pennsylvania's rule matter more here than New York's?
A: The opinion explains Rule 1.6 reaches "information relating to representation of a client," which it says "may be interpreted more broadly" than New York's standard, so the analysis extends beyond contacts to other data.
Q: What does competence have to do with my phone?
A: The opinion ties the duty to Comment [8] of Rule 1.1, which requires a lawyer to keep abreast of the benefits and risks of relevant technology.
Background and rules framework
The opinion interprets Pennsylvania Rule of Professional Conduct 1.6 (confidentiality, including Comment [4]) and Rule 1.1 (competence, including Comment [8] on technology), and references Rules 1.9(c) and 1.18 on information relating to former and prospective clients. These track ABA Model Rules 1.6, 1.1, 1.9, and 1.18.
Citations and references
Rules of Professional Conduct:
- Pa.R.P.C. 1.6, including Comment [4]; ABA Model Rule 1.6
- Pa.R.P.C. 1.1, including Comment [8]; ABA Model Rule 1.1
- Pa.R.P.C. 1.9(c), 1.18; ABA Model Rules 1.9, 1.18
Other opinions cited:
- NYSBA Formal Op. 1240: smartphone contacts and confidentiality
See also
- PA Bar Ethics Op. 2024-100: Third-Party Vendors With Access to Confidential Information
- ABA Formal Op. 477R: Securing Communication of Protected Client Information
- ABA Formal Op. 483: Lawyers' Obligations After a Data Breach
Source
- Landing page: PBA Ethics Opinions (Public)
- Original PDF: F2022-500.pdf
Get today's answer for your situation
You just read a 2022 opinion on this question. Ezel checks the current Pennsylvania Rules of Professional Conduct and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.