This week's Daily Record column is entitled "New Hampshire on the ethics of lawyers using cloud computing."
A pdf of the article can be found here and my past Daily Record articles can be accessed here.
New Hampshire on the ethics of lawyers using cloud computing
Cloud computing — it’s an idea that has finally come of age. What was once an unfamiliar and suspect concept is now becoming commonplace as it proliferates the business world. Not surprisingly then, more and more lawyers are taking advantage of the many benefits that cloud computing offers, including cost savings, flexibility, and agility.
As lawyers’ use of cloud computing increases, so too do the number of ethics decisions about lawyers’ use of cloud computing, the most recent of which was issued in February. In Ethics Committee Advisory Opinion #2012-13/4, the New Hampshire Bar Association Board of Governors addressed the ethics of the use of cloud computing in the practice of law.
The committee agreed with and adopted the conclusion reached by other U.S. jurisdictions that have addressed this issue, explaining that “(t)he consensus among states is that a lawyer may use cloud computing consistent with his or her ethical obligations. To date, every state bar association that has issued an opinion on using cloud computing has said that it is permissible, as long as the lawyer takes reasonable steps to ensure that sensitive client information remains confidential.”
Given the consensus amongst bar ethics committees regarding cloud computing, the New Hampshire Committee’s conclusion wasn’t surprising. But the opinion was an interesting one, made notable by the committee’s adept observations about new technologies and the realities of law practice.
First, the committee acknowledged that lawyers have always outsourced the management of confidential data to third parties: “As noted in NH Bar Ethics Op. 2011-12/5, ‘Lawyers regularly engage companies to provide support services. Banks hold client funds; telephone companies carry privileged communications; credit card companies facilitate the payment of bills; computer consultants maintain necessary technology.’ When engaging a cloud computing provider or an intermediary who engages such a provider, the responsibility rests with the lawyer to ensure that the work is performed in a manner consistent with the lawyer’s professional duties.”
Next, the committee wisely noted that lawyers have never been required to ensure absolute security when it comes to confidential client data, and lawyers’ use of cloud computing services does not trigger a higher standard of care: “It bears repeating that a lawyer’s duty is to take reasonable steps to protect confidential client information, not to become an expert in information technology. When it comes to the use of cloud computing, the Rules of Professional Conduct do not impose a strict liability standard. As one ethics committee observed, ‘Such a guarantee is impossible, and a lawyer can no more guarantee against unauthorized access to electronic information than he can guarantee that a burglar will not break into his file room, or that someone will not illegally intercept his mail or steal a fax.’”
I commend the New Hampshire Bar for issuing this forward thinking and enlightened opinion. As always, it is heartening to see a thoughtful decision about the use of emerging technologies in the practice of law, rather than a knee-jerk, Luddite conclusion based on fear and a lack of understanding.
Fortunately, when it comes to cloud computing, the majority of U.S. ethics committees have issued the latter rather than the former. For a full run down of the ethics decisions issued about cloud computing, see the American Bar Association’s handy comparative chart, which can be found online here.
Nicole Black is a Rochester, New York attorney and Director of Business Development and Community Relations at MyCase, an intuitive cloud-based law practice management platform for the modern law firm. She is also a GigaOM Pro Analyst and 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 is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at email@example.com.