Lawyers must safeguard client documents

BC lawyers are reminded of the critical importance of safeguarding client documents and records at all times. The reminder is timely in light of a recent media report about client documents of a law firm being found around a dumpster and on the street nearby.

Chapter 5 of the Professional Conduct Handbook sets out a lawyer’s professional obligation to safeguard client privilege and confidentiality:

Duty of confidentiality

1. A lawyer shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship, regardless of the nature or source of the information or of the fact that others may share the knowledge, and shall not divulge any such information unless disclosure is expressly or impliedly authorized by the client, or is required by law or by a court. [footnote omitted]

2. A lawyer shall take all reasonable steps to ensure the privacy and safekeeping of a client’s confidential information.

The Information and Privacy Commissioner of BC is concerned about this issue and wishes to remind lawyers that they and their firms are subject to the Personal Information Protection Act. This private sector privacy legislation requires lawyers to take reasonable measures to protect clients’ personal information from risks of unauthorized access, use, disclosure and disposal, and sets out consequences for violation.

Please make certain that your firm has a secure system in place for safeguarding client documents and records, including at the point of disposal. Even the best systems can fail if not properly monitored. All lawyers and staff in your firm should be reminded of their obligations to safeguard client materials. You should also review your firm’s policies for disposal of materials within the office and any arrangements with outside storage facilities or shredding and recycling suppliers. If you have any concerns about weaknesses in your storage or destruction systems, please take steps to rectify them.

Here are examples of safeguards to consider:

  • Maintain client files in secure areas and consider locking file cabinets when lawyers or staff are not in the office.
  • Do not allow lawyers, staff or custodial staff to place client material directly into a garbage or recycling bin. The material should be placed in a bin for cross-cut shredding. Shredding should be done on-site by either your staff or a reputable outside provider, and prior to any recycling or disposal.
  • When using an outside provider for on-site shredding, someone in the firm should monitor the work and obtain a certificate of destruction.
  • Ensure your computer network is secure from intrusion, such as by maintaining proper firewalls. Secure your computers (especially laptops) physically and with password protection. Laptops leaving the office should be encrypted.
  • Erase or destroy computer hard drives before you discard, sell or donate them. Complete erasure requires special software, following the standards of the RCMP and the US Department of Defence.
  • Have your staff enter into a confidentiality agreement respecting confidential information in the firm.
  • Regularly train and remind staff about firm policies for protecting information, and note the consequences of non-compliance.
  • Avoid leaving files or computers in your car and, when working on files at home, consider keeping those in a locked cabinet. Ensure proper disposal of papers through your office, rather than at home.

Document storage and disposal is but one aspect of client confidentiality. It is equally important that everyone in the firm refrains from reading client information in public places where it could be seen, or from discussing client matters in public where they could be overheard.

For more on handling information securely, please see Closed files: Retention and Disposition in the Practice Support/Articles section of the Law Society website at www.lawsociety. bc.ca . The Office of the Information and Privacy Commissioner also publishes practical information for safeguarding private information and touches on several of the points noted above: see www.oipc.bc.ca.

If you have specific enquiries about client confidentiality and privilege, please contact one of our Practice Advisors at the Law Society office.