Last year, I posted a lengthy article (here) concerning potential ethical obligations that attorneys and computer forensics professional might owe each other and where the separation of duties may be blurred.

Along similar lines, a ethics opinion released recently by the Maine Board of Bar Overseers addressed the ethical implications of using a third-party to process and store a law firm’s electronically stored information (ESI). (Hat tip to The Legal Profession Blog for this one). The opinion provides, in pertinent part:

With the pervasive and changing use of evolving technology in communication and other aspects of legal practice, particular safeguards which might constitute reasonable efforts in a specific context today may be outdated in a different context tomorrow. Therefore, rather than attempting to delineate acceptable and unacceptable practices, this opinion will outline guidance for the lawyer to consider in determining when professional obligations are satisfied.

At a minimum, the lawyer should take steps to ensure that the company providing transcription or confidential data storage has a legally enforceable obligation to maintain the confidentiality of the client data involved. See ABA Ethics Opinion 95-398 (lawyer who allows computer maintenance company access to lawyer’s files must ensure that company establishes reasonable procedures to protect confidentiality of information in files, and would be “well-advised” to secure company’s written assurance of confidentiality); N.J. Sup. Comm. Prof. Ethics Opinion 701 (“Lawyers may maintain client files electronically with a third party as long as the third party has an enforceable obligation to preserve the security of those files and uses technology to guard against reasonably foreseeable hacking.”)

In the U.S., there is presently neither a universal code of professional conduct or responsibility nor a national licensing body for computer forensics examiners or legal technologists. Certainly, there is none that I know of for data warehousing. In addition to the suggestions I made in the earlier post (which included working under a well-drafted contract), one consideration in selecting an expert is whether he or she belongs to a professional organization (e.g., IACIS, HTCIA, etc.) that imposes a code of ethics on its members and offers hortarory guidelines for separation of duties, among other things.