Identifying law firm cybersecurity solutions

The first and second articles in this series addressed the scope of the rising cybersecurity problem and some of the common mistakes that law firms make in addressing the problem.

This final article in the series will answer two of the questions most often asked by law firms:

What specific steps can a law firm take to protect its data? What can it do if the information is accessed or stolen, notwithstanding the law firm’s efforts to prevent theft?

There is no one-size-fits-all solution for firms, and policies for effective cybersecurity will vary by firm. However, many approaches include the development of a cybersecurity plan that is composed of two parts: (1) a Cyber Risk Management Plan to reduce the risk of a cybersecurity problem before it happens; and (2) a Cyber Incident Response Plan that includes protocols and practices for addressing a cybersecurity breach after the fact.

Developing a Cyber Risk Plan

The best time to take steps to reduce the risk of a breach is before a cyber breach happens.

After all, once the toothpaste is out of the tube, so to speak, it may be too late. A risk management plan helps reduce the likelihood of an incident occurring in the first instance.

A cybersecurity plan does not solely focus on cyberspace. This plan can also take aim at physical security issues by taking steps to limit access to physical servers, so that only those that need to access them can.

Another example of a step that law firms can take to minimize the risk of a data breach is to develop protocols to protect information on mobile devices, such as smartphones and laptops. Mobile devices are easy to lose and can provide access to confidential information to anyone with the mobile device in hand. Thus, some law firms require the use of passwords that are changed regularly, or consider the use of remote-wiping, which allows a firm to remove all data or confidential information on a device that is lost or stolen.

There are other policies that work for some firms but do not make sense for others. For example, some firms have adopted a policy banning the use of personal devices to access work email, programs, or information. Others implement special procedures for the use of laptops or mobile devices by personnel traveling to areas the firm has identified as “high risk” zones, such as China or Russia. Still other firms require security scanning of storage devices, such as a thumb drive or a CD, before they are used on law firm systems.

Another important risk management tool relates to third-party vendors. One of the highest profile cyber incidents in recent years was the Target breach, which occurred through one of Target’s refrigeration vendors who was connected to Target’s network. This cautionary tale shows that a law firm is only as secure as its weakest vendor.

Because law firms routinely use third-party vendors for litigation support, human resources, and more, firms may wish to ensure that those vendors agree to and comply with the firm’s own security requirements. Firms also may require that vendors notify the firm of a breach or assist with the investigation and resolution.

Implementing a Cyber Incident Response Plan

Even the most careful planning can still result in a cybersecurity breach. Thus, for many firms, having a response plan in place is just as important as devoting resources to preventing breaches.

Often, law firms believe that cyber incidents should be reported to the head of IT so that the

IT team can handle the incident as they deem appropriate. However, a firm addressing a potential breach of confidential data might have obligations under the Rules of Professional Conduct, federal, state or European Union regulations, common law, contract or client engagement agreements — all of which typically fall outside the reign of IT.

In the event of a breach or a loss of information, it can be easy for panic to set in. However, having a response plan in place can provide a roadmap to firms who are in the midst of a crisis. A firm’s incident response plan, often written by counsel in conjunction with the IT department, can include several aspects.

First, a plan may identify the person within the law firm to whom a potential incident should first be reported (often the general counsel). In firms without a designated general counsel, a breach can be reported to someone with authority to contact and engage outside counsel. The plan also might designate the chain of command for incident response and who will make decisions on reporting obligations and next steps.

The plan also may contain information about the firm’s computer networks and servers, including their physical locations and the types of information stored on them. That information will facilitate immediate implementation of an internal investigation, which will help determine the scope of the breach and appropriate remedial steps. An effective plan can also ensure that investigations are conducted in a manner that will preserve evidence (and protect the privilege, if applicable) and include a policy for deciding whether to involve law enforcement to assist in the investigation or pursue criminal charges against the hackers.

An incident response plan typically has notification and reporting policies for deciding whether to disclose the incident to affected firm employees, firm clients, and other individuals whose personal information was accessed, as well as to state and federal regulators. Identifying whom to notify and when depends on several factors, including what data was accessed, who was affected, where the affected parties live, and what type of breach occurred. It also might necessitate the involvement of public relations or media specialists.

Finally, the plan may address whether to hire outside counsel to handle the internal investigation and provide advice. Outside counsel provides credibility, serves to cloak discussions in the attorney-client privilege and protect them from disclosure, and assists in the event of a claim alleging a failure to adequately safeguard client data or appropriately respond to the cyber incident.

It also bears repeating: some of the steps associated with implementing the cyber plan may be defrayed by insurance. While some courts have found coverage for cyber claims under general liability insurance policies, others have found that there is no coverage in GL policies unless the firm “publishes” the private information at issue (as opposed to hackers doing so), suggesting that purchasing a specific cyber policy is the safer approach.

Cybersecurity is an issue that all firms need to consider and address. A good defense is the best offense to help ensure that firms protect themselves, their clients, and their employees.