There are countless articles providing companies with tips and advice on what to look for, and what to look out for, when engaging with a vendor who will store, process and/or use company data and/or network credentials. Given recent high-profile data breaches attributable to vendors of major companies, there has been a focus on tightening controls on vendors. Many companies have put procedures and requirements in place to ensure that vendors storing company data and network credentials are properly vetted, meet IT and security standards, and commit contractually to protect the company’s valuable information.
Despite this, there is one group of vendors storing data that are overlooked by a large number of companies – law firms. Here are a few reasons why:
- Engagements don’t follow the usual vendor procurement process. Law firms are generally engaged directly by the General Counsel, other senior attorneys, or senior management. They are usually engaged due to their specialized expertise in a particular area of law in which there is an immediate need, an existing relationship with a member of the legal or management team, or a recommendation by a trusted resource. Law firm engagements often happen at the same time there is a pressing need for their services (e.g., a pending response to a complaint) with little time for a selection process. Quite often, companies don’t use a formal bid process at all when engaging outside counsel.
- Law firms don’t think of themselves as just another vendor. Law firms generally do not consider themselves to be like other vendors given their specialized role and partnership with companies to provide legal advice and counsel. They are like other service companies in some respects (for example, law firms need to comply with federal, state and local laws, rules and regulations applicable to other companies). Unlike other service companies, the lawyers providing services at a law firm are also bound by rules of professional responsibility with disciplinary measures for noncompliance. These rules include obligations to keep client information confidential. The Model Rules were recently changed to add obligations for law firms to use reasonable efforts to protect client data, and to keep abreast of the benefits and risks associated with relevant technology involved in the practice of law.
When a law firm suffers a major breach exposing customer data and notifies clients in compliance with state breach notification statutes, it will be interesting to see whether lawyers in that firm face disciplinary action under rules of professional responsibility for exposure of client data. If lawyers face discipline as the result of a security breach, it will bring security to the forefront of client-lawyer relationships overnight.
- Other teams within a company consider law firm relationships as “off limits.” Legal often only reaches out to IT for assistance arranging secure transfer of files to and from law firms, and in connection with discovery requests. It’s very rare that procurement and IT teams reach out to Legal to ask them to run law firms through the same vetting process as other vendors handling company data or system credentials, and its’ equally rare for Legal to proactively request this review of the law firms it engages.
Things You Should Do. When your company engages a law firm, consider the following:
- Proactively develop internal vetting requirements. Your Legal, IT, Security and Procurement teams should proactively develop a checklist of questions/action items/contractual requirements when engaging counsel. If engaging counsel in a hurry, make sure the firm realizes that your company will do this diligence as soon as possible following engagement.
- Ask the firm about their security safeguards. When discussing an engagement with prospective counsel, ask them what their technical, administrative and procedural safeguards are for protecting your information (and, if you give them network access, your network credentials). Find out how big their information security team is, and what kind of systems they use. You’re relying on their security safeguards to keep your data safe, so it’s appropriate for you to ask questions about how they secure your data.
Law firms have historically been reluctant to talk about their information security practices.If a firm can’t give you solid information about their information security practices, or can’t give you the name of a person who can answer your IT and security questions, strongly consider looking for alternative counsel.
- Ask about cyber insurance. Ask whether the firm carries cyber insurance to cover security breaches (more and more firms have it). If they do, ask them to add you as an additional insured as you would with other vendors holding your data.
- Add a security rider to your law firm engagement letter, security language to your outside counsel guidelines, or both. Add a short rider to your law firm engagement letter with the security language you came up with in advance with your IT and security teams. Consider addressing topics such as security and confidentiality safeguards, requirements to rapidly deploy security patches to their hardware and software, and confidentiality of login credentials to your network.Ensure they are protecting you if there is an unauthorized disclosure of your company data stored through a third party system or provider they use.
Companies often ask counsel to comply with their outside counsel guidelines, and many ask clients to agree to compliance as part of the retainer letter. Include core security language in your engagement letter, and include an paragraph in the retainer letter requiring the law firm to follow the terms of your outside counsel guidelines (and resolving conflicts in favor of the guidelines).
It’s a matter of if, not when, a law firm announces a major security breach. Once that happens, it will cause a seismic shift in how law firms approach data they hold, and how prospective clients engage with them. Law firms that take a proactive approach and make their commitment to data security part of their core client values, and are willing to share their commitment with prospective clients, will find themselves with a leg up on the competition.