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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-4211" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2019/01/Manafort-filing-Outlined-300x256.jpg" alt="" width="300" height="256">Everyone knows that we have an <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_1_competence/">ethical&nbsp;duty of competence</a>, and&nbsp;in most jurisdictions&nbsp;this includes a duty to be aware of the &ldquo;benefits and risks&rdquo; of relevant technology.&nbsp;&nbsp;Examples of possible technology issues affecting our practices:&nbsp; <a href="https://www.thelawforlawyerstoday.com/2018/10/border-searches-of-your-e-device-encryption-may-be-of-limited-value-in-protecting-client-data/">encryption</a> (and <a href="https://www.thelawforlawyerstoday.com/2018/01/top-legal-ethics-trends-2018-year-of-the/">cyber-security</a> in general),&nbsp;<a href="https://www.thelawforlawyerstoday.com/2018/10/riders-in-the-storm-your-ethics-duties-in-a-disaster/">cloud storage</a>, <a href="https://www.thelawforlawyerstoday.com/2017/10/3573/">e-mail handling</a>, <a href="https://www.thelawforlawyerstoday.com/2015/07/watch-out-here-comes-the-internet-of-things/">the internet of things</a> &mdash; there are many more.&nbsp;&nbsp;And snafus from&nbsp;failing to understand technology or handle it properly can have fallout for lawyers and clients.
Here&rsquo;s a possible&nbsp;example, and it&rsquo;s a scary one:&nbsp; not using redaction&nbsp;technology properly, resulting in disclosure of information that shouldn&rsquo;t be revealed.
Redaction&nbsp;pitfalls
Mistakes in redacting sensitive information can lead to high-profile problems.&nbsp; Just this week, it was <a href="https://www.law.com/2019/01/08/manafort-lawyers-botch-redactions-revealing-details-on-alleged-trump-contacts/?kw=Manafort%20Lawyers%20Botch%20Redactions%2C%20Revealing%20Details%20on%20Alleged%20Trump%20Contacts&amp;et=editorial&amp;bu=Law.com&amp;cn=20190108&amp;src=EMC-Email&amp;pt=AfternoonUpdate">reported</a> that lawyers for President Trump&rsquo;s former campaign chairman, Paul Manafort, apparently failed to redact a federal court document properly, permitting&nbsp;the blacked-out text to be viewed &ldquo;with a few keystrokes.&rdquo;
Similarly,&nbsp;in the Parkland, Florida high school shootings case, the&nbsp;school district apparently didn&rsquo;t&nbsp;properly redact a document regarding the alleged shooter, which&nbsp;contained confidential information about him.&nbsp;&nbsp;A Florida newspaper <a href="http://www.sun-sentinel.com/local/broward/parkland/florida-school-shooting/fl-florida-school-shooting-contempt-hearing-20180814-story.html">reported</a>&nbsp;that the method used &ldquo;made it possible for anyone to read the blacked-out portions by copying and pasting them into another file,&rdquo; which the newspaper did &mdash; drawing&nbsp;a <a href="https://www.law.com/dailybusinessreview/2018/08/16/attorneys-reporters-weigh-in-on-broward-judges-threat-to-hold-sun-sentinel-in-contempt/#">contempt threat</a> from&nbsp;the judge presiding over the criminal case.
Not redacting documents properly has also led to disciplinary action.&nbsp; In 2013, a Chicago lawyer was <a href="http://www.iardc.org/HB_RB_Disp_Html.asp?id=10819">reprimanded</a> when he failed to ensure that personal information was redacted in federal student loan&nbsp;collection actions he filed on behalf of the U.S. government.&nbsp; And in 2014, a Kentucky lawyer&nbsp;received a <a href="https://caselaw.findlaw.com/ky-supreme-court/1661125.html">public reprimand</a> for, among other misconduct, failing to redact his client&rsquo;s social security number in bankruptcy filings he made on her behalf.
A law.com&nbsp;reporter for Corporate Counsel&nbsp;<a href="https://www.law.com/corpcounsel/2018/12/19/epic-fail-this-common-redaction-error-exposes-confidential-info/">recently wrote</a> that he&nbsp;was able to download from PACER a 100-page affidavit in pdf format with multiple redacted pages &mdash; but the black boxes&nbsp;disappeared when the document was copied into another application, &ldquo;revealing all the private financial information that was supposed to be hidden.&rdquo;
The reporter quoted a security expert who cautioned that people don&rsquo;t know how to use redaction technology properly,&nbsp;and cited&nbsp;a 2005 National Security Agency <a href="https://www.cnet.com/news/editing-tips-from-the-nsa/">report</a>&nbsp;advising that redaction should not just visually hide sensitive information but actually remove it from the document.&nbsp; (An updated NSA report is <a href="http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.170.6099&amp;rep=rep1&amp;type=pdf">here</a>.)
Think you can sidestep complicated technology by just taking out your black marker and obscuring the confidential text?&nbsp; Even that may not be enough; as noted <a href="https://www.btlaw.com/insights/publications/the-perils-of-redaction-simple-steps-to-protect-confidential-information">here</a>,&nbsp;some scanners can pick up the covered words.
What to do?
In addition to the duty of technological&nbsp;competence set out in comment [8] of Model Rule 1.1, we of course must preserve our clients&rsquo; confidential information under <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information/">Rule 1.6</a>, and safe-keep their property under <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_15_safekeeping_property/">Rule 1.15</a> (which can include their information).
Does all this mean that every lawyer&nbsp;must become a tech guru with a detailed understanding of&nbsp;the highly complex systems we are required to use and rely on&nbsp;every day?&nbsp;&nbsp;No.&nbsp; (I, for one, can barely add and subtract, and I went to law school so I wouldn&rsquo;t have to &mdash; at least not very much.)&nbsp; But at minimum, we have to&nbsp;recognize what&nbsp;we don&rsquo;t know &mdash;&nbsp;in the words of comment [8], that means &ldquo;keeping abreast&rdquo; of technology developments.&nbsp; And most important,&nbsp;we have to get&nbsp;the expert help we need to navigate these shark-filled waters, whether it&rsquo;s&nbsp;turning to high-end tech&nbsp;advisors, getting assistance from the bar association or educating ourselves.
What we can&rsquo;t do is put our techno-phobic&nbsp;heads in the sand.

core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Redacting documents can be tech challenge — and legal ethics risk, too