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    Wisconsin Lawyer
    November 01, 2017

    Cell Phones: Guard Client Information

    If you communicate with or about clients via cell phone, you have an ethical duty to keep the data confidential.

    Dean R. Dietrich


    I use my cell phone all the time to communicate with clients. What steps should I take to protect client information?


    Cell phones are one of the most common devices used by lawyers as part of their practice. To protect the confidentiality of client information, lawyers must understand when to use the cell phone and how to avoid using public cellular services for the transmission of important data information.

    Dean R. DietrichDean R. Dietrich, Marquette 1977, of Ruder Ware, Wausau, is chair of the State Bar Professional Ethics Committee.

    Recent changes to the Wisconsin Rules of Professional Conduct require that lawyers be more knowledgeable and careful about the use of technology in their everyday practice. This includes the use of cellular data and cell phones. Lawyers must make sure that they are doing everything reasonably possible to protect the confidentiality of client information when using these devices.

    Lawyers must take precautions to make sure that all information can be removed (wiped) from the cell phone if it is lost or misplaced. The phone should have a “poison pill” of some nature that will allow the remote elimination of all client information if the lawyer loses the cell phone or it is stolen. Lawyers also need to take precautions to back up the information on the cell phone so that the information is accessible if it is necessary to wipe the data because the cell phone is lost or stolen.

    Lawyers also need to be careful how they use cell phones to communicate with clients in public settings. This involves direct voice communication in a public setting where others can overhear the conversation as well as the use of the cell phone to send email to clients using public Wi-Fi rather than secure network systems. Lawyers should use either a protected data package or a personal Wi-Fi network instead of using public Wi-Fi networks to transmit data in the form of email communications to clients. It is also important to remember that many cell phones will automatically access a public Wi-Fi when that public Wi-Fi has been used in the past, so lawyers need to be careful as to the network system they are using when communicating information to a client.

    Lawyers must take precautions to make sure that all information can be removed (wiped) from the cell phone if it is lost or misplaced.

    Texting has also become a common way of communicating with clients. Lawyers must understand whether the text message is properly protected through encryption at the time of transmission, which means the lawyer must understand some of the basics regarding the texting protocol. Lawyers also must develop a system to preserve the text messages to document communication as part of the client representation.

    The use of cell phones in the representation of clients has become routine for lawyers. While this allows lawyers to communicate more efficiently with their clients, lawyers must also be aware of and think about the different ways to protect the information that is being communicated. There are simple tasks that can be accomplished by the lawyer or a specialist assisting the lawyer to preserve the integrity and confidentiality of the data used on the cell phone.

    Need Ethics Advice?

    As a State Bar member, you have access to informal guidance and help in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys.

    Ethics Hotline: To informally discuss an ethics question, contact the State Bar ethics counsels, Timothy Pierce or Aviva Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m to 4 p.m.

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