Anti-Hacking Duties Don't Include Replacing Stolen Client Funds

The ABA/BNA Lawyers’ Manual on Professional Conduct™ is a trusted resource that helps attorneys understand cases and decisions that directly impacts their work, practice ethically, and...

By Joan C. Rogers

Nov. 17 — Lawyers who have taken reasonable security measures to safeguard their computer network aren't ethically obligated to replace client funds when hackers break in anyway and steal client money, the North Carolina bar's ethics committee concluded Oct. 23.

However, lawyers do have to restore client funds if they failed to take reasonable steps that could have prevented the theft, the committee said. It added that lawyers must help clients in several ways when a theft occurs.

Online Banking Hack

The opinion considers a lawyer's professional obligations in several scenarios when a third party steals funds from a trust account. It doesn't address a lawyer's potential legal liability for these losses.

In one scenario, a hacker gains illegal access to a lawyer's computer network and electronically transfers the balance of the funds in the client trust account to a separate account controlled by the hacker.

The lawyer doesn't have to replace the stolen funds, the committee advised, provided that she has taken reasonable care to minimize the risk to client funds by implementing reasonable security measures in keeping with the fiduciary obligations in the North Carolina Rules of Professional Conduct on safekeeping property.

As explained in North Carolina Formal Ethics Op. 2011-7 (2012), safety measures for online banking include strong password policies and procedures, the use of encryption and security software, hiring a technology expert for advice and making sure relevant firm members and staffers are trained on and abiding by the security procedures.

The lawyer whose network was hacked may be professionally obligated to replace the funds if she didn't use reasonable care in trust accounting and staff supervision and that failure was a proximate cause of the theft, the committee said.

‘Spoof' E-Mail in Real Estate Deal

In another scenario, a hacker gets a lawyer to send him funds the lawyer has received for a real estate closing by hacking the e-mail of one of the parties to the real estate transaction and then using a “spoof” e-mail address to send the lawyer instructions for wiring funds owed in the deal.

The lawyer doesn't notice that the e-mail address has one different letter, and she follows the instructions in the e-mail to wire the money without calling first to see why the e-mail instructs her to wire the money instead of mailing a check as previously arranged.

Under these circumstances, the committee said, the lawyer has a professional responsibility to replace the funds because she did not follow reasonable security measures to verify the disbursement change by calling the sender at the phone number listed in the lawyer's file or confirming the seller's e-mail address.

In yet another scenario, a third party unaffiliated with a lawyer creates counterfeit checks identical to the lawyer's trust account checks, makes checks payable to himself, and cashes them.

The committee advised that the lawyer is not ethically required to replace the stolen funds if she substantially complied with the ethics rules on trust accounting and staff supervision but was nevertheless victimized by the third-party theft.

However, the committee said the lawyer must promptly investigate and take steps to prevent further thefts and “must seek out every available option to remedy the situation,” including researching the law to determine whether the bank is liable; communicating with the bank about its liability and whether it has insurance to cover the loss; considering whether to close the affected trust account and transfer funds to a new account; and working with law enforcement to recover the funds.

Duties to Affected Clients

The opinion says that with regard to all these situations, the lawyer owes it to the affected clients to take steps that could include the following:

• Notify the clients of the theft and advise them about its consequences for the representation.
• Help the clients identify any source of funds, such as bank liability and insurance, to cover the losses.
• Seek a continuance or otherwise defer the clients' matter if necessary to protect their interests.
• Explain what happened to third parties or opposing parties to the extent necessary to protect the clients' interests.
• Take protective steps if stop payments are issued against outstanding checks.
• Report the theft to the state bar. 

To contact the reporter on this story: Joan C. Rogers in Washington at jrogers@bna.com

To contact the editor responsible for this story: Kirk Swanson at kswanson@bna.com

For More Information 

The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.

Copyright 2015, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.