As regular readers of my column know, I make it a point to cover opinions regarding the ethics of lawyers using cloud computing as they are handed down. That used to be a fairly easy task to stay on top of as the opinions were infrequent since cloud computing was such a foreign concept to attorneys.
The good news is that cloud computing use by lawyers has become much more common and as a result more jurisdictions are tackling the issue of the ethics of cloud computing. However, because of the increasing number of opinions being issued, it turns out that there were a few helpful opinions issued over the past year or so that I have not yet covered So, I figured now was as good a time as ever!
But first, let’s start with a brief list of opinions from a number of states that I’ve already covered and which green light the use of cloud computing by lawyers, including Alabama (Formal Opinion No. 2012-184), Arizona (Opinion 09-04), California (Opinion 2010-179), Florida (Proposed Advisory Opinion 12-3), Iowa (Opinion 11-01), Maine (Opinion 194), Massachusetts (Opinion 12-03), New Hampshire (Opinion 2012-13/4), New Jersey (Opinion 701), New York (Opinion 842 and Opinion 940), Nevada (Opinion 33), North Carolina (2011 Formal Ethics Opinion 6), Oregon (Opinion 2011-188), Pennsylvania (Opinion 2011-200), Vermont (Opinion 2010-6), and Virginia (Legal Ethics Opinion 1872).
Now let’s move on to the decisions issued by ethics committees in Maine, Ohio and Washington.
For starters, the Maine Board of Bar Overseers issued Opinion #207, which updated Opinion 194 (listed above). The board concluded that it was ethical for Maine attorneys to use cloud computing as long they exercised due diligence in vetting cloud computing providers and ensured that “safeguards (we)re in place to ensure that the attorney’s use of this technology (did) not result in the violation of any of the attorney’s obligations under the various Maine Rules of Professional Conduct.”
The board then approached the issue of due diligence in my least favorite way by including a rather lengthy list of factors that lawyers should consider along with questions lawyers should ask when vetting a cloud computing provider, many of which were quoted from opinions issued by other jurisdictions.
In contrast, the Ohio State Bar Association issued an opinion establishing a more flexible standard in OSBA Informal Opinion 2013-03. The Professionalism Committee concluded that lawyers can store confidential client data in the cloud, but recognized that listing overly-specific guidelines would be pointless since “technology changes so quickly, overly-specific rules would become obsolete as soon as they are issued … For example, rules about exactly what security measures are required in order to protect client data stored in the cloud would be superseded quickly by technological advances.” Instead, the committee offered a short list of general issue that a lawyer should consider when choosing a cloud computing service.
Finally, the Washington State Bar Association approach in Advisory Opinion 2215 was similar to Ohio’s. The Rules of Professional Conduct Committee concluded that it was permissible for lawyers to use cloud computing and then provided a short list of general principles that lawyers should consider when researching a cloud provider. Importantly, however, the committee explained that “(s)pecific practices regarding protection of client property and information have always been left up to individual lawyers’ judgment, and that same approach applies to the use of online data storage. The lawyer must take reasonable steps, however, to evaluate the risks involved with that practice and to ensure that steps taken to protect the information are up to a reasonable standard of care.”
For a complete list of all U.S. ethics opinions on cloud computing, see Bob Ambrogi’s recent blog post at Lawsites: www.lawsitesblog.com/2014/05/cloud-ethics-opinions-full-list.html.
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Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She can be reached at niki@mycase.com.
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