Today Blawgletter welcomes back the estimable Ron Woessner as Guest Blawger.  Joining him is aspiring SMU law grad Chris Knowles.

Their post calls on the American Bar Association to tighten the ethical test for security of electronic communications involving confidential matters.  As you'll see, the ABA's standard contrasts with the stricter one that applies to our friends who practice healing arts instead of law.

Messrs. Woessner and Knowles surely know their subject.  Their company, Zix Corporation, features its own Email Encryption Service

The opinions they express, of course, are their own.  Let's see what they have to say.

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Trust Me — I'm a Doctor (Not a Lawyer)

Ethical Standards for Confidential Communications

Doctors are more ethical than attorneys.  Just ask the American Medical Association.  In maintaining the professional standard of care in communicating confidential information, the professional guidelines are clear.  Doctors are required to protect their patients' personal, confidential information when using electronic mail while lawyers get a pass on client privacy.

The ABA position regarding unencrypted email is well established.  An attorney may communicate confidential client information via unencrypted email without violating the ABA's Model Rules of Professional Conduct.  This same conduct by a medical doctor would run afoul of the AMA guidance for physicians regarding electronic transmission of patient information.  When the AMA considered the ethical responsibility owed to patients in email communication, it determined that the potential privacy implications demanded the use of encryption technology in the transmission of messages containing a patient's personal information.

According to risk guidelines adopted by the AMA, email communications should be conducted over a secured network, with provisions for privacy and security — including encryption — in accordance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA).  "As online communications between physician offices and pateints continue to rise, it is imperative that physicians protect privacy and medical record confidentiality as well as reduce their own liability," said Donald J. Palmisano, MD, an AMA Trustee and member of the AMA Online Oversight Panel.  Dr. Palmisano added that he "encourage[s] physicians to select a secure messaging solution, rather than use un-secure email."

Aditionally, the AMA has noted that unencrypted email services do not meet the security guidelines established by federal law in HIPAA.  The HIPAA Security Standards require physicians to protect the security of patients' electronic medical information through the use of procedures and mechanisms that protect the confidentiality, integrity, and availability of information.  Therefore, physicians and other healthcare providers and their business associates must implement administrative, physical, and technical safeguards that will safeguard electronic health information that they collect, maintain, use, and transmit.  In short, doctors must use email encrytion to protect patient privacy.

The AMA mandates encryption because it has determined that email is not a secure method for sending sensitive data.  The conclusion that physicians should steer clear of unencrypted email communication with patients has been endorsed by the majority of the nation's leading medical societies, including the American Academy of Opthalmology, the American Academy of Pediatrics, the American College of Obstetricians and Gynecologists, the American Psychiatric Association, and the American Society of Plastic Surgeons — groups comprising over 70 percent of the nation's insured physicians.  However, it's not just doctors who understand the duty to protect a client's privacy.

State governments and privacy-attuned companies require encryption for email containing personal, confidential customer information.  In addition to the scores of banks and healthcare companies that use email encryption to transmit personal, confidential data, the governments of Massachusetts and Nevada either currently or soon will demand encryption of personal information sent via email.  And consider the recent press announcement by Walgreens/Kentucky Health Systems (KHS) concerning the unencrypted transmission of roughly 28,000 state retirees' names, dates of birth, and Social Security numbers by Walgreens to their customer, Kentucky Retirement Systems (KRS).  Under KRS rules, the failure of Walgreens/KHS to comply with KRS's encryption mandate required them to disclose the security breach to the public.

In contrast to the privacy-conscious position of the AMA, state governments, and privacy-responsible companies, the ABA permits the use of unencrypted email communication between attorneys and clients because it believes unencrypted email affords a "reasonable expectation of privacy."  The courts do not always agree — as one client recently discovered when using unencrypted email at work to communicate with his attorney.  See Scott v. Beth Israel Medical Center, Inc., 847 N.Y.S.2d 436 (N.Y. Sup. Ct. Oct. 17, 2007).  The case did not end well for the client.  See Scott v. Beth Israel Medical Center, Inc., 850 N.Y.S.2d 81 (N.Y. App. Div. 2008) (ordering judgment against client).

Clients deserve better.  The AMA requires email encryption for private health information.  Why does the ABA accept a lower standard for attorney-client communications?  It is time for the ABA to raise the ethical bar and require the use of encrypted email for attorney-client communications.

Ron Woessner
Senior Vice President, General Counsel, and Secretary
Zix Corporation

Chris Knowles
Consultant
Zix Corporation

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Photo of Barry Barnett Barry Barnett

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck…

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck Redden).

Barnett is a Fellow in the American College of Trial Lawyers, and Lawdragon has named him one of the top 500 lawyers in the United States three years in a row. Best Lawyers in America has honored him as “Lawyer of the Year” for Bet-the-Company Litigation (2019 and 2017) and Patent Litigation (2020) in Houston. Based in Texas and New York, Barnett has tried complex business disputes across the United States.

TRIAL COUNSEL
Barnett’s background, training, and experience make him indispensable to his clients. The small-town son of a Texas roughneck and grandson of a Texas sharecropper, Barnett “developed an unusual common sense about people, their motivations, and their dilemmas,” according to former client Michael Lewis.

Barnett has been historically recognized for his effectiveness and judgment. His peers chose him, for example, to the American College of Trial Lawyers and American Law Institute. His decades of trial and appellate work representing both plaintiffs and defendants have made him a master strategist and nimble tactician in complex disputes.

Barnett focuses on enforcement of antitrust laws, the “Magna Carta of free enterprise,” in Supreme Court Justice Thurgood Marshall’s memorable phrase. “Barry is one of the nation’s outstanding antitrust lawyers,” according to Joseph Goldberg, a member of the Private Antitrust Enforcement Hall of Fame. Named among Texas’s top ten antitrust lawyers of 2023, Business Today calls Barnett a “trailblazer” among the “distinguished legal minds” who “dedicate their skill and expertise to the maintenance of healthy competition in various sectors” of the Lone Star State’s booming economy. Barnett is also adept in energy and intellectual property matters and has battled for clients against a Who’s Who list of corporate behemoths, including Abbott Labs, Alcoa, Apple, AT&T, BlackBerry, Broadcom, Comcast, Dow, JPMorgan Chase, Samsung, and Visa.

Barnett commands a courtroom with calm and credibility and “is the perfect lawyer for bet the company litigation,” said Scott Regan, General Counsel of former client Whiting Petroleum. His performance before the Supreme Court in Comcast Corp. v. Behrend prompted the Court to withdraw the question on which it had granted review. The judge in a trial involving mobile phone technology called Barnett “one of the best” and that his opening statement the finest he had ever seen. Another trial judge told Barnett minutes after a jury returned a favorable verdict against the county’s biggest employer that he was one of the two best trial lawyers he’d ever come across—adding that the other one was dead.

COMPLETE PACKAGE
A versatile trial lawyer, Barnett knows how to handle a case all the way from strategic pre-suit planning to affirmance on appeal. He’s tried cases to verdict and then briefed and argued them when they went before appellate courts, including the Second, Third, Fifth, and Tenth Circuits, the Supreme Court of Louisiana, and (in the case of Comcast Corp. v. Behrend) the Supreme Court of the United States.

Barnett is a sought-after public speaker, often serving on panels and talking about topics like the trials of antitrust class actions and techniques for streamlining complex litigation. He also comments on trends in commercial litigation and the implications of major rulings for outlets such as NPR, Reuters, Law360, Corporate Counsel, and The Dallas Morning News. He’s even appeared in a Frontline program about underfunding of state pensions, authored chapters on “Fee Arrangements” and “Techniques for Expediting and Streamlining Litigation” (the latter with Steve Susman) in the ABA’s definitive treatise on Business and Commercial Litigation in Federal Courts, 5th, and commented on How Antitrust Enforcers Might Think Like Plaintiffs’ Lawyers.

HARD GRADERS
Clients and other hard graders have praised Barnett for his courtroom skills and legal acumen.

A client in a $100 million oil and gas case, which Barnett’s team won at trial and held on appeal, said Barnett and his team “presented a rare combination of strong legal intellect, common sense about right and wrong, and credibility in the courtroom.” David McCombs at Haynes and Boone said Barnett “has a natural presence that goes over well with juries and judges.”

Even former adversaries give Barnett high marks. Lead opposing counsel in a decade-long antitrust slugfest said “Barry is a highly skilled advocate. He understands what really matters in telling a narrative and does so in a very compelling manner.”

CIVIC ENGAGEMENT
Barnett relishes opportunities to collaborate with all kinds of people. At the Center for American and International Law (CAIL), founded by a former prosecutor at Nuremberg in 1947 and headquartered in the Dallas area, he has served on the Executive Committee, co-chaired the committee that produced CAIL’s first-ever strategic plan, supported CAIL’s Institute for Law Enforcement Administration and other development efforts, and proposed formation of a new Institute for Social Justice Law. CAIL’s former President David Beck said “Barry is extremely bright” and is “very well prepared in every lawsuit or professional task he undertakes.”

Barnett is also a Trustee of the New-York Historical Society, a Sterling Fellow at Yale, a member of the Yale University Art Gallery’s Governing Board, a winner of the Class Award for his work on behalf of his college class, and a proud contributor to the Yellow Ribbon Program at Harvard Law. Barnett’s pro bono work includes leading the trial team representing people who are at greatest risk of severe illness and death as a result of being exposed to the novel coronavirus SARS-CoV-2 while being detained in the Dallas County jail—work for which he received the NGAN Legal Advocacy Fund RBG Award.

At Susman Godfrey, Barnett has served on the firm’s Executive Committee, Employment Committee, and ad hoc committees on partner compensation, succession of leadership, and revision of the firm’s partnership agreement. He also twice chaired the Practice Development Committee.

KEEPING PERSPECTIVE
Barnett understands that clients face many pressures. Managing the stress is important, especially in matters that take years to resolve. He encourages clients to call him whenever they have a question or concern and to keep the inevitable ups and downs in perspective. He wants them to know that he will do his level best to help them achieve their goals. He also strives to foster trust and to make working with him a pleasure.

Cyrus “Skip” Marter, the General Counsel of Bonanza Creek in Denver and a former Susman Godfrey partner and client, said Barnett is “excellent about communicating with clients in a full and honest manner” and can “negotiate for his clients from a position of strength, because he is not afraid to take a case through a full trial on the merits.” Stacey Doré, the President of Hunt Utility Services and a former client, said that Barnett is “an excellent trial lawyer and the person you want to hire for your bet-the-company cases. He is client focused, responsive, and uniquely savvy about trial and settlement strategy.” A New York colleague said, “Barry is a joy to work with as co-counsel. He tackles complex procedural and factual hurdles capably, efficiently, and without drama.”

PERSONAL
Barnett’s wide-ranging experience and calm, down-to-earth approach enable him to connect with clients, judges, jurors, witnesses, and even opposing counsel. He grew up in Nacogdoches, Texas. He co-captained his high school varsity football team as an All-East Texas middle linebacker while also serving as the Editor of Key Club’s Texas-Oklahoma District, won the Best Typist award, took the History Team to glory, and sang in the East Texas All Region Choir. As Dan Kelly of client Vistra Corp. put it, Barnett is “a great person to be around.”

Barnett is steady and loyal. He has practiced at Susman Godfrey his entire career. He and his wife Nancy live in Dallas and enjoy spending time in Houston and New York. Their daughter works for H-E-B in Houston, and their son is a Haynes and Boone transactions lawyer in Dallas.

As a member of Ivy League championship football teams in his junior and senior years at Yale and a parent of two Yalies, Barnett has no trouble choosing sides for “The Game” in November. And he knows how important fighting all the way to the end is. On his last play from scrimmage, in the waning minutes of The Game on Nov. 22, 1980, he recovered a Crimson fumble.

Yale won, 14-0.