The Supreme Court of South Carolina

Re: Amendments to Rules 1.0, 1.1, and 1.6, Rules of Professional Conduct, Rule 407, South Carolina Appellate Court Rules

Appellate Case No. 2019-000318

 

ORDER

The South Carolina Bar has filed a petition asking this Court to amend Rules 1.0, 1.1, and 1.6 of the Rules of Professional Conduct, which are contained in Rule 407 of the South Carolina Appellate Court Rules.  The Bar proposes adopting modified versions of amendments the American Bar Association (ABA) made to the ABA Model Rules of Professional Conduct in 2012 as part of the ABA's Ethics 20/20 initiative.  The amendments to these Model Rules are meant to provide guidance to lawyers about the benefits and risks of using certain technologies, with a particular emphasis on the protection of clients' confidential information.
 
After reviewing the Bar's petition and proposed amendments, as well as the ABA's amendments to these Model Rules, we elect to adopt the ABA's version of the amendments to Rule 1.0 and Rule 1.6, with minor changes to reflect the differences between the ABA Model Rules and the Rules of Professional Conduct adopted by this Court.  We adopt a modified version of the Bar's proposed amendment to Comment 6 to Rule 1.1, and decline to adopt the Bar's proposed new Comment 7.

Pursuant to Article V, Section 4 of the South Carolina Constitution, we amend Rules 1.0, 1.1, and 1.6 of the Rules of Professional Conduct, which are contained in Rule 407 of the South Carolina Appellate Court Rules, as set forth in the attachment to this Order.  The amendments are effective immediately. 

Columbia, South Carolina
November 27, 2019

Rule 1.0(r), RPC, Rule 407, SCACR, is amended to provide:

(r) "Writing" or "written" denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, photostating, photography, audio or videorecording, and electronic communications. A "signed" writing includes an electronic sound, symbol or process attached to or logically associated with a writing and executed or adopted by a person with the intent to sign the writing.

Comment 6 to Rule 1.1, RPC, Rule 407, SCACR, is amended to provide:

[6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including a reasonable understanding of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit information related to the representation of a client, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

Rule 1.6, RPC, Rule 407, SCACR, is amended to add new paragraph (c), which provides:

(c) 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.

Comment 20 to Rule 1.6, RPC, Rule 407, SCACR, is amended to provide:

[20] Paragraph (c) 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 (c) 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.

Comment 21 to Rule 1.6, RPC, Rule 407, SCACR, is amended to add the following sentence to the end of the Comment:

Whether a lawyer may be required to take additional steps in order to comply with other law, such as state and federal laws that govern data privacy, is beyond the scope of these Rules.