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Ohio Bar green lights cloud computing and virtual law firms

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Ohio Bar green lights cloud computing and virtual law firms

Cloud computing - where electronic data is stored offsite on servers owned and maintained by a third party - is quite common in 2017. The proliferation of mobile devices, which are essentially useless in the absence of cloud computing, has helped contribute to this trend. Another relevant factor is the convenience and flexibility offered by web-based computing. When data is stored in the cloud, it can be accessed from anywhere using any internet-enabled device, at any time, day or night.

Because of the many benefits offered by cloud computing, more and more lawyers are using cloud-based software to store and access documents, track time and billing, manage their contacts and calendars, accept online credit card payments from clients, and interact and collaborate with clients, experts, co-counsel, and more. Lawyers are even foregoing brick and mortar law firms and launching virtual law practices.

Because of these developments ethical committees across the country are weighing in on lawyers using cloud computing in their practices, with more than 25 permitting it thus far. In June, Ohio joined their ranks when the Ohio Board of Professional Conduct issued Opinion 2017-05 (online:
http://www.ohioadvop.org/wp-content/uploads/2017/03/Adv.-Op.-2017-5.pdf).

There were 2 issues considered in the opinion: “1) Is it proper for a lawyer to provide legal services exclusively, or almost exclusively, via a “virtual law office?” 2) Is it proper for a lawyer
operating primarily as a “virtual law office” to lease a shared, nonexclusive office space
for purpose of occasional face-to-face meetings with clients, or receiving mail?”

The Board acknowledged that lawyers have a continuing duty to maintain technology competence, explaining that “a VLO lawyer should possess a general knowledge of the security safeguards for the technology used in the lawyer's practice, or in the alternate hire or associate with persons who properly can advise and inform the lawyer.”

The Board confirmed that Ohio lawyers are permitted to use cloud computing technologies to run virtual law practices. In order to comply with their ethical obligations, lawyer must take reasonable efforts to prevent the unauthorized disclosure of confidential client data. Steps lawyers should take include analyzing “ several nonexclusive factors including 1) the sensitivity of the information, 2) the likelihood of disclosure if additional safeguards are not employed, 3) the cost of employing additional safeguards, 4) the difficulty of implementing the safeguards, and 5) the extent to which the safeguards adversely affect the lawyer’s ability to represent clients.”

Lawyers must also vet third party cloud computing providers and confirm that the vendor understands that lawyers have a duty of confidentiality, and must also verify that the vendor will maintain and regularly back up law firm data. Finally lawyers must “(r)equire that the vendor give the lawyer notice of subpoenas for client data, nonauthorized access to the stored data, or other breach of security, and a reliable means of retrieving the data if the agreement is terminated or the vendor goes out of business.”

Next the Board moved on to address a virtual attorney’s obligation to clients. According to the Board, due to the unique nature of virtual law offices, lawyers must discuss the technologies that the firm uses with clients, along with the communication methods available, and ascertain which ones are amenable to the client. These determinations should be memorialized in the client fee agreement.

Finally, the Board turned to the issue of the office setup of virtual law firms, concluding that a physical office is not required in Ohio. However, an office address must be provided on letterhead and elsewhere which can consist of “the lawyer’s home or physical office, the address of shared office space, or a registered post office box.” And, the use of shared office space with both lawyers or nonlawyers is permissible as long as steps are taken to maintain the confidentiality of client files.

Overall, this opinion is in line with those issued in other jurisdictions and takes a reasonable stance on lawyers using cloud computing software, such as law practice management software, as part of a virtual law office setup. Notably, Ohio allows provides lawyers with flexibility when it comes to listing an office address, permitting the use of an post office box, rather than requiring virtual lawyers who have no physical office space to use their home address, as some justifications do.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. She is also 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 is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She can be reached at niki@mycase.com.


U.S. Supreme Court on First Amendment rights and social media

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.

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Last month the United States Supreme Court weighed in on the intersection of the First Amendment with social media in Packinham v. North Carolina, No. 15–1194

The Court struck down a North Carolina criminal statute on First Amendment grounds. The law provided that registered sex offenders who used social media sites that could be accessed by children could be convicted of a felony. Although the majority’s holding itself was notable, even more interesting and groundbreaking was the language used by the court in reaching its decision.

At the outset, the majority confirmed the far-reaching impact of the internet and social media on our society, and importantly acknowledged that when issuing rulings related to technology, courts must understand that it is ever advancing and always changing: “While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be. The forces and directions of the Internet are so new, so protean, and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow.”

Next, the majority turned to social media and noted the potential it has to amplify each and every person’s message, allowing everyone an opportunity to be heard.”These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to ‘become a town crier with a voice that resonates farther than it could from any soapbox.’”

The majority then engaged in what I consider to be the hallmark of every well-decided opinion involving issues related to internet activities: analogized the online conduct to similar offline conduct:. The majority wisely explained: “The better analogy to this case is Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569 (1987), where the Court struck down an ordinance prohibiting any ‘First Amendment activities’ at Los Angeles International Airport because the ordinance covered all manner of protected, nondisruptive behavior including ‘talking and reading, or the wearing of campaign buttons or symbolic clothing,’ id., at 571, 575. If a law prohibiting ‘all protected expression’ at a single airport is not constitutional, id., at 574 (emphasis deleted), it follows with even greater force that the State may not enact this complete bar to the exercise of First Amendment rights on websites integral to the fabric of our modern society and culture.”

In comparison, the dissent’s position was a great example of the common knee jerk reaction to new technologies sometimes shown by courts and ethics bars across the country, wherein the dissent exhibited a reluctance to adapt to the changing times: “Cyberspace is different from the physical world, and if it is true, as the Court believes, that ‘we cannot appreciate yet’ the ‘full dimensions and vast potential’ of ‘the Cyber Age,’ ibid., we should proceed circumspectly, taking one step at a time.”

Interestingly, this reticence toward embracing new technologies that was expressed by the dissenting justices, Chief Justice Roberts, Justice Thomas, and Justice Alito, is rarely present when those same justices apply emerging technologies to limit constitutional rights, rather than expand them. For example, no such reluctance has been shown when these same justices diminish the Fourth Amendment rights of American citizens, whether it’s permitting the use of technology to enhance the ability of law enforcement to snoop on U.S. citizens or granting law enforcement unfettered investigational access to data stored online. These countervailing approaches to technology by the more conservative members of the court represent a strange, but not entirely surprising, contradiction of ideology, and it’s a trend that I don’t expect will change anytime soon.

Nicole Black is a Rochester, New York attorney, legal technology journalist, and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for solo and small law firms. She is also 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 is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She can be reached at niki@mycase.com.