Peer to Peer Magazine

the quarterly magazine of ILTA 39 Peer to Peer possibility alone casts doubt regarding the sufficiency of the screen. This is especially true when peer firms are employing more stringent protective measures. With an increasing body of case law enumerating specific screening requirements, the days of "on your honor" and "red dot" approaches to ethical screening have passed. Today firms must use effective, timely and demonstrable measures they can report on in response to client inquiry or court challenge. rules and Expectations are changing Court decisions aren't alone in shaping law firm screening standards and practices. Industry rules also have evolved, largely in response to the realities of lateral movement among law firms. In the United States, the American Bar Association (ABA) recently updated its model rules to allow screening without client consent. More important, the new rules accept unilateral screening but mandate additional enforcement, notification and tracking requirements. Other countries have similar, and often more stringent, rules and requirements. In the United Kingdom, screens are called "electronic information barriers," and are an acceptable way to manage confidentiality. In Canada, the Canadian Bar Association (CBA) adopted more permissive screening rules in 2008. Their recommendations highlighted the importance of screening technology: "Sophisticated confidentiality screen software can now restrict access to electronic documents to those who are permitted access pursuant to established confidentiality screens. Confidentiality screen software can be linked with time-entry software to ensure that only those who are authorized to participate in a matter can docket time to the matter. With the advent of these computerized monitoring and security systems comes much more assurance that client confidentiality has been protected and that information has not been improperly accessed." the Industry confidentiality management trend Today, some firms still forgo rigorous confidentiality enforcement measures and live with the resulting uncertainty and risk. Others employ tactics they perceive to be "good enough." These may include distributing memoranda and manually configuring initial document security controls. However, such approaches do not address the data management, notification and ongoing tracking, maintenance and reporting implemented by many firms across the industry. No firm wants to find itself in the unwelcome position of disclosing or explaining an infraction to clients, the court, the press or a regulatory body, which is why most firms take all the steps necessary to enhance the practices, standards and protections they rely on to manage confidentiality. It's a prudent response to an important risk issue that no organization is immune to. Firms seeking to follow industry-standard confidentiality management practices face a burdensome set of requirements. Manual efforts cannot achieve the same compliance levels as automated approaches. Organizations seeking to put in place the strongest risk protections available look to confidentiality management technology. According to the 2009 Law Firm Risk Management Survey, the vast majority of NLJ 250 firms use some measure of electronic and policy controls to limit access to information subject to ethical screening or other confidentiality rules. managing risk When Lawyers Leave Lawyer departures can create significant expense for law firms, including direct costs from client departures and indirect costs from lost relationships and knowledge. And the risks stemming from departures can actually exceed the cost of a lost book of business. A key issue firms need to consider is what forms, files and client data are moving out the door along with departing lawyers. Competitive and even malpractice dangers are fueled when client information is transported prior to official consent, or when attorneys take work product from non-migrating clients or from the firm's knowledge management library. It's not uncommon for laterally departing lawyers to remove files because "they're sure" that clients will be moving with them to new firms. But considering the confidentiality, records management and other areas of risk, even innocent mismanagement of information can create serious repercussions for clients and firms alike. For example, if the movement of information circumvents a firm's records management and retention processes, documents that should be destroyed might not be. With clients increasingly mandating confidentiality and other information management standards, unmanaged movement can put a firm in violation of outside counsel guidelines prescribing records management practices. It also creates the very real possibility that a client involved in litigation could find that discoverable information, once thought destroyed, has resurfaced. Similarly, firms investing heavily in knowledge management and the creation of a "best and blessed" work product and precedent repositories would not know that material was making its way to their competitors. the realities of Policy vs. Practice In many instances, existing firm policies explicitly forbid lawyers from unilaterally taking information with them when they leave. However, attorneys sometimes either aren't aware of these Managing Information Risk with Lateral Hires and Lawyer Departures

• Cover