Formal opinions on cloud-computing
Twelve states have issued formal advisory opinions that specifically discuss the propriety of cloud-based services that use the web and external servers for information storage in the law firm setting, such as Online Legal Software. Several other states and the American Bar Association have addressed the issue briefly or in connection with other opinions.
The Alabama Disciplinary Commission in Ethics Opinion 2010-02 held that Alabama attorneys may use cloud-computing services provided that the attorney exercises reasonable care in doing so.
The State Bar of Arizona Ethics Committee has two relevant opinions on cloud-computing: In opinion 05-04, the Committee held that electronic storage of client files is permissible, as long as the attorney takes competent and reasonable steps to safeguard client confidences. This was expanded in opinion 09-04, which confirmed that using online accessible documents was fine, providing, of course, that reasonable steps were taken to safeguard client data.
The State Bar of California Standing Committee on Professional Responsibility and Conduct addressed the larger issue, namely the propriety of using electronic devices and communications. A helpful list of factors was set forth therein; again, reasonableness is the touchstone..
One of the most useful opinions comes from the Iowa State Bar Association Committee on Ethics and Practice Guidelines, which sets out some “basic guidance” in the use of the cloud and a helpful list of factors for the attorney to consider.
The recent Massachusetts Bar Association opinion emphasized the broad issues that ring across the decisions: the attorneys’ responsibility was to ensure their data was reasonably safe from unauthorized access and interception, and there was not an unreasonable risk of inadvertent disclosure.
The State Bar of Nevada Standing Committee on Ethics and Professional Responsibility summarized much of the existing literature, concluding that the attorney’s responsibility was to exercise reasonable care in the selection of the third-party contractor (including cloud providers); to have a reasonable expectation of confidentiality; and to instruct and require the contractor to keep the information confidential and inaccessible.
The recent opinion by the New Hampshire State Bar Ethics Committee adopted “the consensus among states that a lawyer may use cloud computing consistent with his or her ethical obligations, as long as the lawyer takes reasonable steps to ensure that sensitive client information remains confidential.”
The New York Committee on Professional Ethics found that using an outside online storage provider for confidential client information is fine, so long as the lawyer takes reasonable care to ensure confidentiality will be maintained.
The North Carolina State Bar followed this position, determining cloud services are fine, so long as the attorney uses reasonable care to minimize the risks of inadvertent disclosure of confidential information and protect the security of client information and files.
In consensus with other states, the Oregon State Bar said that use of online service providers was fine, so long as reasonable steps are taken to ensure that client data is secure and confidential.
The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility came to a similar conclusion, holding that Pennsylvania attorneys may use the cloud, as long as (1) all such materials remain confidential, and (2) reasonable safeguards are employed to ensure that the data is protected from breaches, data loss and other risks.
Lastly, the Vermont Bar Association agreed with the national consensus regarding use of the cloud; holding that usage of the cloud is fine, so long as the attorney takes reasonable precautions to protect the confidentiality of the data and ensure access to the materials.
Bar Association Websites
Many State and National bar websites, as well as private blogs have helpful resources and discussion forums on issues of cloud-computing. Some of the most useful include:
The American Bar Association, through their website, publications, and listservs (many designed for specific niches within the legal community) is an essential starting point for information and community.
The Law Society of British Columbia has put out an extensive checklist of issues to be considered when making the switch to cloud-computing. While not all the issues are relevant outside that particular province, it behooves every attorney to consider the same.
Private Attorney Blogs
A helpful blog focused on solo practice can be found at My Shingle, by Carolyn Elefant
Another helpful site Solo Practice University offers information as well as classes on different aspects of solo and small firm practice.
Online Legal Software Around the Web
Our YouTube channel has the latest videos and presentations from Online Legal Software, including handy guides and checklists and refresher training videos.
Read about legal cloud security on YouBlawg