THE COURTS
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
[ 204 PA. CODE CH. 81 ]
Proposed Amendments to the Comments to Pennsylvania Rules of Professional Conduct Relating to Competence and Confidentiality to Reference the Public Access Policy of the Unified Judicial System
[47 Pa.B. 5926]
[Saturday, September 23, 2017]Notice is hereby given that The Disciplinary Board of the Supreme Court of Pennsylvania is planning to recommend to the Supreme Court of Pennsylvania that it adopt amendments to the comments to Pennsylvania Rules of Professional Conduct (''Rules'') 1.1 and 1.6 relating to competence and confidentiality, as set forth in Annex A.
By Order of January 6, 2017, the Supreme Court approved the Public Access Policy of the Unified Judicial System (''policy'') for case records filed in and maintained by the appellate and trial courts, which makes such records open and accessible to the public.1 This policy takes effect on January 6, 2018, and represents a significant move to create a uniform standard for treatment of documents containing confidential and sensitive information about parties. Consequently, attorneys must familiarize themselves with and abide by the new policy, which places responsibility upon attorneys to safeguard confidential information in the documents they file with the courts. Specifically, policy sections 7.0(D) and 8.0(D) require parties and their attorneys to certify their compliance with the policy. Additionally, sections 7.0(F) and 8.0(F) provide that a court may sanction non-compliant parties.
Following the Court's adoption of the policy, the Board analyzed the Rules to consider whether changes are required to conform to the policy's requirements. We concluded that the black letter language of the Rules need not be amended to reference the policy. However, as the Board recognized the important and significant changes that the policy brings to the practice of law, we determined that reference to the policy should be made in the commentary to RPC 1.1 and RPC 1.6.
RPC 1.1 requires a lawyer to provide competent representation to a client, which entails the legal knowledge, skill, thoroughness and preparation reasonably necessary for representation. Current comment (8) to RPC 1.1 explains that in order to maintain the requisite knowledge and skill, the lawyer should keep abreast of changes in the law and its practice. The proposed amendment advises a lawyer that competent representation includes familiarity with the policies of courts in which the lawyer practices, including the Public Access Policy of the Unified Judicial System.
RPC 1.6(d) provides that a lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. Such reasonable efforts would include knowledge of the policy and compliance with the directives contained therein. Proposed amendment to comment (25) provides that, pursuant to paragraph (d), a lawyer should act in accordance with court policies governing disclosure of sensitive or confidential information, including the Public Access Policy of the Unified Judicial System.
Interested persons are invited to submit written comments by mail or facsimile regarding the proposed amendments to the Office of the Secretary, The Disciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, PO Box 62625, Harrisburg, PA 17106-2625, Facsimile number (717-231-3382), Email address Dboard.comments@pacourts.us on or before October 23, 2017.
By the Disciplinary Board of the
Supreme Court of PennsylvaniaJULIA FRANKSTON-MORRIS, Esq.,
Secretary
Annex A
TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
Subpart A. PROFESSIONAL RESPONSIBILITY
CHAPTER 81. RULES OF PROFESSIONAL CONDUCT
Subchapter A. RULES OF PROFESSIONAL CONDUCT § 81.4. Rules of Professional Conduct.
The following are the Rules of Professional Conduct:
CLIENT-LAWYER RELATIONSHIP Rule 1.1. Competence.
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Comment: * * * * * Maintaining Competence
(8) To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. To provide competent representation, a lawyer should be familiar with policies of the courts in which the lawyer practices, which include the Public Access Policy of the Unified Judicial System.
Rule 1.6. Confidentiality of Information.
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Comment: * * * * * Acting Competently to Preserve Confidentiality
(25) Pursuant to paragraph (d), a lawyer should act in accordance with court policies governing disclosure of sensitive or confidential information, including the Public Access Policy of the Unified Judicial System. Paragraph (d) requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer's supervision. See Rules 1.1, 5.1 and 5.3. The unauthorized access to, or the inadvertent or unauthorized disclosure of, information relating to the representation of a client does not constitute a violation of paragraph (d) if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer's efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer's ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to forgo security measures that would otherwise be required by this Rule. Whether a lawyer may be required to take additional steps to safeguard a client's information in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules. For a lawyer's duties when sharing information with nonlawyers outside the lawyer's own firm, see Rule 5.3, Comments (3)-(4).
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[Pa.B. Doc. No. 17-1568. Filed for public inspection September 22, 2017, 9:00 a.m.] _______
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