iPhones, Attorneys and Ethics

Apple’s white-hot iPhone presents an ethical problem for attorneys. The problem is that, since the battery is not removable by the consumer for replacement, the phone must be sent to Apple for this repair. And since the batter is expected to fail after 300-400 charges, then one must assume the gizmo goes back to Apple after two years.

But what about all that confidential email on the iPhone? Unlike a regular cell, or a PDA whose battery can be popped out and replaced, an iPhone user may have to surrender it to Apple for a week or two. Even assuming a replacement cell can be used in the interim, it doesn’t ameliorate the bigger problem of compromising client security. Therein lies the ethics issue.

New York’s Code of Professional Responsibility, along with many if not all others, includes the canon that “A Lawyer Should Preserve the Confidences and Secrets of a Client.”

And since the iPhone is, by definition, not working when it goes in for service, confidential information can not simply be deleted.

For attorneys, it may be impossible to send the iPhone to Apple for servicing. In fact, it could easily be said to constitute legal malpractice to release the iPhone from your custody, and therefore make version 1.0 of hte iPhone impossible to purchase as anything other than a disposable toy.

For a dissection of the iPhone and the problem with the battery, see Wired Magazine’s IPhone Autopsy: Wired News Voids the Warranty.

Addendum: Apple just announced their battery replacement program for out-of-warranty iPhones (via The Apple Phone Show). Interestingly, it says that:

[T]he repair process will clear all data from your iPhone. It is important to sync your iPhone with iTunes to back up your contacts, photos, email account settings, text messages, and more.

Will that be sufficient to send an iPhone loaded with data off to a stranger at Apple, instead of having an in-house IT department or your local computer handyman take a crack at it the way you would for a laptop? From the perspective of an attorney with client confidences (or physician with medical records or businessman with trade secrets at stake), I doubt it.

Addendum 7/4/07 — iPhone Review for Attorneys (TechnoEsq)

(Eric Turkewitz is a personal injury attorney in New York, Mac user since ~1994 and Apple shareholder since 1999.)

  • Share/Bookmark

Related posts:

  1. More On iPhone Battery Issue and Attorney Ethics
  2. Rudy Giuliani Among New York Attorneys That Violate New Ethics Rules
  3. Avandia Attorneys Violating New York’s Ethics Rules?
  4. Official in Charge of U.S. Attorneys Resigns
  5. The Ethics of Attorney Search Services

Tags:

July 2, 2007 · No Comments ·

No Responses Leave a comment

Leave a Reply

The New York Personal Injury Law Blog is sponsored by its creator, Eric Turkewitz of The Turkewitz Law Firm. The blog might be considered a form of attorney advertising in accordance with New York rules going into effect February 1, 2007 (22 NYCRR 1200.1, et. seq.) As of July 14, 2008, Law.com became an advertiser, as you can see in the sidebar. Law.com does not control the editorial content of the blog in any way.

Throughout the blog as it develops, you may see examples of cases we have handled, or cases from others, that are used for illustrative purposes. Since all cases are different, and legal authority may change from year to year, it is important to remember that prior results in any particular case do not guarantee or predict similar outcomes with respect to any future matter, including yours, in which any lawyer or law firm may be retained.

Some of the commentary may be become outdated. Some might be a minority opinion, or simply wrong. No reader should consider this site (or any other) to be authoritative, and if a legal issue is presented, the reader should contact an attorney of his or her own choosing for advice.

Finally, we are not responsible for the comments of others that may be added to this site.