The Maryland State Bar Association’s (MSBA) Ethics Committee responded to attorneys’ concerns regarding the passage of the European Union’s General Data Protection Regulation (GDPR), which became effective earlier this year.
The new EU law, found in Art. 17 of the GDPR, grants all EU citizens, regardless of nationality, the ability to exercise their “right to be forgotten.” This means that, upon request, controllers of data (including attorneys) are subject to their client’s right to erasure.
In MSBA’s Ethics Docket No. 2018-06, the Committee concluded that attorneys can comply with both the GDPR and the Maryland Rules of Professional Conduct (MRPC) when dealing with a client’s request for erasure, and thereby avoid conflicts of interest. According to the Committee, attorneys may be required by the GDPR to delete client data despite their obligations to conduct conflict checks in accordance with the MRPC. Thus, after deleting client data, attorneys nonetheless must remain aware of any potential conflicts that may exist, even though they may no longer have access to the client’s information. The opinion advises that a solution to the conflict dilemma may be to deem a client’s request to destroy data to be a waiver of future conflicts.
The opinion concludes that a waiver may be implicit in the destruction of data if: “(i) the firm provides written notice stating that deleting the information could pose the potential for a future conflict of interest, and that by requesting the deletion, the client consents to the firm’s potential future representation of clients with conflicts they would have been able to discover with the erased data; and (ii) no attorney who handles the matter can have any retained knowledge of the former client’s information.”
Although the “right to be forgotten” has certain exceptions, it is important for attorneys to become familiar with any potential ethical implications that could be posed by the GDPR requirements.
The MSBA Committee Opinion can be found here.
The full text of the GDPR can be found here.
