Page 260 - Ad Hoc Report June 2018
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collect is neither secure nor readily usable for purposes of effectively managing and overseeing these offices.
Attorneys have two separate obligations that govern their actions regarding information generated in the course of representing clients: a legal obligation to maintain attorney-client privilege and the work-product doctrine, and an ethical duty to maintain client confidentiality.1002 The confidentiality requirement “applies not only to matters communicated in confidence by the client but also to all infor- mation relating to the representation, whatever its source.”1003 Attorneys must also undertake “efforts to prevent the inadvertent or unauthorized disclosure of, or unau- thorized access to, information relating to the representation of a client.”1004 The prohibition against disclosure of confidential information is broad, and “applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person.”1005 In short, information security is absolutely necessary to the practice of public defense.
10.1 IT Programs and Functions
There are three different software programs (collectively “defender data” or “defender IT”) that defenders use to collect, send, and analyze confidential informa- tion regarding their clients:
1. Lotus Notes email, which is used daily by defenders and contains mas- sive amounts of highly confidential information about client representa- tions.”1006 The email program is the vehicle for communicating with clients and co-counsel, discussing strategy, and preparing every aspect of a defen- dant’s case. Many of these emails clearly fall under the categories of work product or attorney-client communication.
2. defenderData, or “dData,” the federal defender timekeeping and case management system. Defender offices open and close cases and input time spent into the system, and some offices input detailed case notes that include summaries of witness interviews, attorney client conversations, and strategy decisions, among other privileged information. The applica- tion also links to the discovery associated with a representation.1007 Federal
1002 SeeModelRulesofProf’lConductr.1.6,5.3(explainingthattheattorney-clientprivilegebelongs to the client and can be waived only by the client’s informed consent).
1003 SeeModelRulesofProf’lConductr.1.6cmt.3.
1004 ModelRulesofProf’lConductr.1.6(c).
1005 ModelRulesofProf’lConductr.1.6cmt4(emphasisadded).
1006 LetterfromJonSands,FPD,D.Ariz.,toCaitClarke,Chief,DefenderServicesOffice, Administrative Office of the United States Courts (December 2, 2013) (discussing defender misgivings about reorganization and defender IT).
1007 SeeMemorandumtoJudgeJohnBatesonSensitivityofDefenderServicesData(2013).
No recommendation presented herein represents
T H E A D H O C C O M M I T T E E T O R E V I E W T H E C R I M I N A L J U S T I C E A C T the policy of the Judicial Conference of the United States unless approved by the Conference itself.

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