San Diego Lawyer September/October 2018

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E ETHICS “Essentially, it requires greater transparency by those who collect or process data to the owners of the data — among a lot of other things. Very stiff penalties for noncompliance.” Clyde looked to Macbeth. “What does this mean for me?” “From a professional responsibility viewpoint, two things come immediately to mind.” “OK —” “First, you have an ethical obligation under Rule 3-500 to respond to reasonable client inquiries. Given the effective date of GDPR and your transparency obligations, you have a duty to respond to your client’s questions.” “All of them?” “I’ll let Sara spend time with you about the GDPR requirements. She’s our expert. Ethically, the requirement is to keep the client ‘reasonably informed’ about significant developments in the representation. I think a change in law this significant to a client’s rights would be considered a ‘significant development.’” “Other advice?”

duty to former clients and conflicts, and such.”

“But be sure to remind your client that you, as a lawyer, are duty-bound — new Rule 1.6, former Rule 3-100, and section 6068(e) (1) — to keep all the client’s information confidential. ‘At every peril to yourself.’ You don’t share it. That should address some of the client’s legitimate data privacy concerns.”

“Wow!” “Wow it is, my friend.” Macbeth and Duncan started to leave, Macbeth humming the tune from "It’s a Small, Small World.”

“Good idea. Anything else?” Editor's Note: The COPRAC opinion to which Macbeth referred is Formal Opinion 2010-179.

“Our duty of competence requires us to have or acquire the requisite skill and learning, or consult with a competent lawyer who has them, when representing a client. A COPRAC formal ethics opinion, and amendments to two ABA Model Rules, suggest the duty of competence applies to knowledge about technology. I think a lawyer representing clients in Europe has a duty to understand those clients’ GDPR rights. And the lawyer’s GDPR obligation toward those clients.”

See also comments to ABA Model Rules 1.1 and 1.6, competence and confidentiality. New and revised Rules of Professional Conduct become effective November 1, 2018.

Edward McIntyre ( is an attorney at law and co-editor of San Diego Lawyer.

“Even if we practice in the United States?” “A small world just got a lot smaller, my friend. Spend some time with Sara in the conference room. She’ll walk you through all the new GDPR data privacy requirements, including the right to ‘be forgotten’ and what that might mean to our

No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.

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