ACC Litigation Committee September Newsletter
Message from the Litigation Committee Chair  
2017 ACC Annual Meeting Update  
ABA Formal Ethics Opinion Reminds Lawyers of Their Duties of Competence and Confidentiality in the Digital Age  
2017 Annual Litigation Committee Member Survey  
Upcoming Programs  
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Updates From ACC Committees

Message from the Litigation Committee Chair

Greetings everyone and welcome to the Litigation Committee’s third quarter newsletter! I hope that you were able to get away from the office and spend some quality time with friends and family this summer. It’s hard to believe that the summer is coming to a close and that we are nearly into the month of September.  For me, this newsletter is bittersweet because it marks the last time that I will be communicating with you as the Chair of the Litigation Committee.  

It has truly been an honor to have served as the Chairman of this great Committee and I am proud to have worked with so many gifted and talented leaders that encompass our executive leadership team. Over the past year, our executive team has worked tirelessly to generate quality programming for our members, which included dozens of hours of Legal Quick Hits and CLE eligible webcasts and Annual Meeting sessions; partnering with chapters and other committees for webinars, roundtable discussions and co-sponsored legal quick hits; and organizing numerous resources that have been included in the ACC Docket, ACC Docket Briefings, eGroups, the ACC's Blog (, and within the resources section of the Committee’s homepage.  I am extremely proud and grateful for all that our executive leadership team has done and continues to do in service to our Committee, the ACC, and the broader legal community.

This past year was especially challenging for our Committee given all of the transitions that we faced with respect to our leadership team and the Committee’s sponsors. Every year, the Committee evaluates its leadership team and makes adjustments as needed to ensure that the team is properly staffed and aligned to support the needs of the Committee and all of its members in the best manner possible. And every year, the leadership team delivers great programs and resources for our members. This year was no exception and I am confident that our leadership team will continue to deliver the same quality of programming next year as well. I would also be remiss if I failed to highlight the recent arrival of our new sponsors, Integreon and Norton Rose Fulbright.  While the leadership team worked hard in the first half of the year to provide quality programming to our members without the help of a committee sponsor, the Committee’s new collaboration with Integreon and Norton Rose Fulbright has already resulted in some great programming on litigation avoidance through contracts, e-discovery concerns with BYOD, and advertising and consumer fraud litigation. Needless to say, the leadership team is excited about the future and the many opportunities that we will have to collaborate further with our new sponsors to continue serving the needs of all of our members.

As a leadership team, we look forward to speaking to those of you who plan to attend the Committee’s annual business meeting, which will be held during the 2017 ACC Annual Meeting in Washington, DC this October. The Committee and its sponsors have a great deal planned for this upcoming Annual Meeting, including five sessions that we are sponsoring or co-sponsoring throughout the conference, a cocktail party to be hosted by our sponsors, and the Committee’s business meeting, which will include the election of our executive leadership team for 2018. So if you are planning to attend the Annual Meeting, then please join us for breakfast on Monday morning during the Committee’s business meeting.     

In closing, I would like thank each of my friends and colleagues on the executive leadership team and within the ACC for all of their support and encouragement this past year. Serving on the Committee over the past few years has been rewarding and extremely fun, which was due in large part to the amazing members and people that help to lead the Committee. I will miss being involved in the day-to-day leadership of the Committee, but I know that I will be leaving the Committee in great hands and that next year’s leadership team is going to be awesome. Thank you all for your hard work and devotion, and I look forward to another successful year in 2018!

Bryon Koepke

Chair, Litigation Committee
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2017 ACC Annual Meeting Update

For those of you who plan to attend the upcoming Annual Meeting in Washington, DC, please consider participating in the following sessions which will be sponsored by the Litigation Committee:

  • Session #102 - Attorney-Client Privilege Goes Global
  • Session #211 - General Counsel’s Role in Cybersecurity Preparedness and Legal Liability from Cybersecurity Exposure
  • Session #309 - Preventing Litigation Through Contract Drafting
  • Session #408 - Mapping and Leveraging Stakeholders in Litigation Matters
  • Session #503 - Exploring Ethics at Trial Through Film

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ABA Formal Ethics Opinion Reminds Lawyers of Their Duties of Competence and Confidentiality in the Digital Age
By Denver G. Edwards and Risa Rich

Is it permissible for lawyers to send information to their clients in unencrypted e-mails? Indeed, what are a lawyer’s ethical obligations to clients when creating, sending, or storing sensitive information? The American Bar Association (“ABA”) says it depends whether the unencrypted e-mail or storage method is “reasonable” under the circumstances. 

On May 11, 2017, the ABA’s Standing Committee on Ethics and Professional Responsibility published Formal Opinion 477, which addresses securing communication of protected client information. The Opinion seeks to balance a lawyer’s ethical obligations with the requirement to manage cybersecurity risks. The Committee concludes that “[a] lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. However, a lawyer may be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.” 

Formal Opinion 477 updates Formal Opinion 99-413, which advised lawyers of the duty of confidentiality when the lawyer uses e-mail to communicate with clients. Use of e-mail to communicate and exchange documents with clients has become ubiquitous since the ABA published Formal Opinion 99-413. The devices and technologies lawyers use to create, transmit, and store confidential client information have expanded and continue to evolve.  The ABA developed Formal Opinion 477 mindful that these technologies expose lawyers to relentless cyber threats.  The Committee specifically noted that “[e]ach device and storage location offer an opportunity for the inadvertent or unauthorized disclosure of information relating to the representation, and thus implicate a lawyer’s ethical duties.”  Formal Opinion 477, therefore, helps lawyers determine how to discharge their ethical obligations to their clients in the current technological landscape.

In 2012, the ABA added certain amendments to the Model Rules of Professional Conduct that incorporated standards related to lawyer’s use of technology. The Technology Amendments, as they were called, alerted lawyers that use of technology to communicate with clients or to transmit sensitive or protected client information electronically triggered the duties of competence and confidentiality. The Committee states “[a]t the intersection of a lawyer’s competence obligation to keep abreast of knowledge of the benefits and risks associated with relevant technology, and confidentiality obligation to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client, lawyers must exercise reasonable efforts when using technology in communicating about client matters.” 

Comment 18 to Model Rule 1.6(c) provides a non-exclusive list of factors to guide an inquiry into a lawyer’s use of technology and compliance with the lawyer’s ethical obligation, including: (i) the sensitivity of the information, (ii) the likelihood of disclosure if additional safeguards are not employed, (iii) costs, (iv) the difficulty of implementing the additional safeguard, and (v) potential adverse impacts on the lawyer’s ability to represent clients. Moreover, the Committee reminds us that reasonable efforts may also require lawyers to evaluate whether to avoid the use of electronic communications altogether.

Besides these factors, the Committee also suggests a framework to protect confidential client data that resembles the cybersecurity framework developed by that National Institutes of Standards and Technology which is highlighted in the ABA Cybersecurity Handbook. The Handbook directs lawyers to develop a process to assess risks, identify and implement responses to those risks (i.e., a gap analysis), verify results, and continually monitor and update systems to account for new developments. Formal Opinion 477 offers practical guidance that includes: (1) understanding the nature of the threat to the information involved; (2) understanding how client confidential information is transmitted and where it is stored; (3) understanding and using reasonable electronic security measures; (4) determining the appropriate level of protection for the information involved; (5) appropriately marking or designating client confidential information; (6) training lawyers and non-lawyer assistants in technology and information security; and (7) appropriately vetting third-party vendors. 

The guidance is not aimed solely at lawyers employed at private law firms. In-house counsel risk violating their ethical obligations to their client, the corporation, because Model Rule 1.0 makes clear that “law firm” includes lawyers employed in the legal department of a corporation or other organization. Thus, in-house counsel, like their private sector counterparts, need to be mindful of cybersecurity risks when they create, transmit and store client data. 

The core obligations of lawyers to their clients – competence and confidentiality – have not changed. Technological innovations that add convenience and efficiency to the practice of law also pose threats to information lawyers create, transmit, and store on behalf of clients. Formal Opinion 477 highlights that lawyers can represent clients professionally and ethically, but they must pro-actively assess cybersecurity risks and make reasonable efforts to protect inadvertent or unauthorized disclosures of client information.

Key takeaways:

  •  In-house and outside counsel need to be conversant about the types of information sharing technology used in the profession and the risks they pose. 
  • Lawyers need to be proactive about cybersecurity.  Outside counsel should discuss confidentiality protocols and related costs when the client engages counsel.  In some cases (high-profile deals, sensitive investigations or litigation, etc.), it may be as important as identifying the scope of the representation, staffing, or the fee arrangement. If hackers gain unauthorized access to client data because counsel failed to institute reasonable safeguards, the financial and reputational consequences could be dire.
  • Besides creating a strong perimeter defense for the law firm, lawyers have to be equally vigilant about vendors they employ and the resources such vendors allocate to cybersecurity.  A client will not be forgiving whether the breach occurred at or through a vendor introduced by the law firm, rather than the law firm itself.

Author Bios:
Risa D. Rich, Associate, Bressler Amery Ross

Denver G. Edwards, Principal at Bressler Amery Ross
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2017 Annual Litigation Committee Member Survey

Please take a moment to participate in the 2017 ACC Litigation Committee Survey. Your input is extremely valuable to ACC as we endeavor to curate programing that is both timely and relevant to your interests in the upcoming year.
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Upcoming Programs
Don't forget to register for these upcoming virtual programs!

September 14 - How Will Brexit Impact Litigation in the US, UK and EU?

September 26De-Complicating Compliance: Practical Steps to Avoiding Regulatory Crosshairs
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2017 Annual Meeting Networking Event Sponsored by Integreon and Norton Rose Fulbright

If you plan on attending the 2017 ACC Annual Meeting, please join your fellow committee members for a networking reception hosted by the Litigation Committee's sponsors Integreon and Norton Rose Fulbright.

Date: Tue. October 17, 2017

Time: 7:00 PM -9:00 PM ET

Location: Norton Rose Fulbright Rooftop, 799 9th Street NW, Washington, D.C 20001

RSVP: Email

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NEW - Join the Litigation Committee's LinkedIn Group!

 Be in the Know and Network on LinkedIn!

The Litigation Committee now has a LinkedIn group. To request to join, please go to: 


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