Law Life ... Florida Bar on the ethics of cloud computing

By now, cloud computing should be a familiar concept, even if you don’t yet use it in your law practice. It has been around for years now and as a result, law firms are increasingly taking advantage of the benefits offered by this flexible, affordable technology.

For that reason, bar associations across the United States are being asked to opine on the ethics of lawyers using cloud computing in their law practices, with the most recent one being the Professional Ethics Committee of the Florida Bar, which issued Proposed Advisory Opinion 12-3 in January of this year.

At the outset of this opinion, the committee examined the concept of cloud computing, settling on the following definition: “Cloud computing” is defined as “Internet-based computing in which large groups of remote servers are networked so as to allow sharing of data-processing tasks, centralized data storage, and online access to computer services or resources.”

It then explained that the primary issue presented by the use of cloud computing by lawyers is confidentiality: “The main concern regarding cloud computing relates to confidentiality. Lawyers have an obligation to maintain as confidential all information that relates to a client’s representation, regardless of the source.

Rule 4-1.6, Rules Regulating The Florida Bar.”
Importantly, as part of its analysis of this issue, the committee noted that Florida attorneys are required to stay abreast of changes in technology as part of their ethical obligations: “(T)his committee has previously opined that lawyers have an obligation to remain current not only in developments in the law, but also developments in technology that affect the practice of law. Florida Ethics Opinion 10-2.” In other words, ignorance of technology is no excuse and lawyers must ensure that they have an understanding of the technologies available to them, even if they choose not to use them in their practice.

Next, the committee turned to the issue at hand, noting that a number of ethics opinions have been issued in other jurisdictions which address the issue of whether lawyers can use cloud computing in their practices and that every ethics committee concluded that doing so was permissible. The opinions reviewed included: Alabama Ethics Opinion 40 2010-02, Arizona Ethics Opinion 09-04 (2009), Iowa Ethics Opinion 11-01 (2011), Nevada Formal Ethics Opinion 33 (2006), New York State Bar Ethics Opinion 842 (2010), and 57 Pennsylvania Ethics Opinion 2011-200.

After reviewing all of the opinions, the committee concluded that Florida attorneys could ethically use cloud computing in their law practices: “In summary, lawyers may use cloud computing if they take reasonable precautions to ensure that confidentiality of client information is maintained. The lawyer should research the service provider to be used, should ensure that the service provider maintains adequate security, should ensure that the lawyer has adequate access to the information stored remotely, and should consider backing up the data elsewhere as a precaution.”

And last, but not least, the committee cautioned that when dealing with particularly sensitive information, lawyers should consider whether housing said data in the cloud would be appropriate even where all of the above conditions were met.

Thus, Florida, one of the more conservative bars in the United States, joins other jurisdictions by giving the green light to the use of cloud computing by lawyers.

The Florida bar’s acknowledgement of cloud computing as a viable option for Florida attorneys simply offers further confirmation, to the extent that it’s even needed at this point, that cloud computing is a secure, reliable technology that can safely be used by law firms.
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Nicole Black is VP at MyCaseInc.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycaseinc.com.