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Florida Bar’s Professional Ethics Committee requests Board of Governors to direct it to prepare ethics opinion on cloud computing

Hello and welcome to this Ethics Alert blog which will discuss the recent request of the Professional Ethics Committee of The Florida Bar (PEC) to request that the Board of Governors of The Florida Bar (BOG) direct it to prepare an ethics opinion on protecting client confidences when lawyers want to store records via third party digital “cloud” computing.

The PEC met in Orlando on June 22, 2012 and one of the agenda items for the meeting was a discussion of out-of-state ethics opinions on cloud computing and consideration of whether the committee should ask the Bar’s Board of Governors to direct the committee to adopt an opinion addressing the issue. This discussion had been deferred at the February 3, 2012 PEC meeting due to time constraints. During the June meeting, PEC members discussed concerns with placing confidential client information in the custody of third parties on digital platforms since there are issues related to maintaining the security and confidentiality of (and access to) client records. There are no guidelines for Florida lawyers since there are no prior ethics opinions on the topic. The PEC ultimately voted unanimously to ask the Board of Governors to direct it to prepare the opinion.

If the BOG agrees and instructs the PEC to prepare the opinion, it will most likely set forth guidelines cloud computing for lawyers and will not recommend that the use of cloud computing be prohibited. Florida Bar Ethics Opinion 10-2 (which is attached), provides guidance to lawyers to insure that client information on hard drives of discarded copiers, computers, scanners, and other electronic equipment is protected but does not address digital cloud computing.

Bottom line: As I previously stated, there are no Florida Ethics Opinions which provide specific guidance to Florida lawyers to comply with Bar Rules when placing confidential client information on digital platforms outside of the lawyer’s office. Under the Bar Rules, the PEC is not permitted to prepare Ethics Opinions unless requested by the BOG (and under other limited circumstances). If the Board of Governors authorizes the Ethics Opinion (and the PEC prepares and finalizes the opinion), Florida lawyers will have more specific guidance in this area.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax (727) 799-1670

[email protected]

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    Thanks for passing this along Joe. The ABA is supposed to be addressing the issue this week also.

    You’re welcome, Tad. Florida may become one of the growing number of jurisdictions which say that cloud computing is ethical, but buyer (lawyer) beware. It will be interesting to see how the ABA responds to these issues.

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