Ethics and Other Lessons Learned “In the Breach”

It seems like a new data breach is reported every day in the media. While media reports of a breach are bad by themselves, mismanagement of investigation and response can turn a bad situation worse. We will review best practices following the discovery of a possible data breach, including critical decision making at the outset of an investigation, preservation of the attorney-client privilege, avoidance of conflicts, presenting investigation results to a variety of audiences, and preparing for post-breach litigation. We will think about the ethical duties that apply to attorneys, including in-house counsel, and how those might be implicated in various data breach scenarios. Finally, we will consider the ethical duties outside counsel owes to their clients when they experience a data breach.

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