Hello and welcome to this Ethics Alert blog with an update on the status of The Florida Bar’s Proposed Advisory Opinion 12-3 on the ethics of cloud computing and protecting client confidences when lawyers want to store records in the digital “cloud” using third party vendors. The Florida Bar’s Professional Ethics Committee (PEC) will consider approval of the proposed opinion at its June 28, 2013 meeting in Boca Raton in conjunction with The Florida Bar’s annual convention. The proposed advisory opinion is also on the Bar’s website at: https://www.floridabar.org/TFB/TFBResources.nsf/Attachments/186D086CDDCBF92F85257B01007A5091/$FILE/12-03%20PAO.pdf?OpenElement
The opinion concludes that storing client confidential information and documents in the “cloud” is ethical with several important caveats. “This Committee (PEC) agrees with the opinions issued by the states that have addressed the issue. Cloud computing is permissible as long as the lawyer adequately addresses the potential risks associated with it. As indicated by other states that have addressed the issue, lawyers must perform due diligence in researching the outside service provider(s) to ensure that adequate safeguards exist to protect information stored by the service provider(s). New York State Bar Ethics Opinion 842 suggests the following steps involve the appropriate due diligence:
Ensuring that the online data storage provider has an enforceable obligation to preserve confidentiality and security, and that the provider will notify the lawyer if served with process requiring the production of client information;
Investigating the online data storage provider’s security measures, policies, recoverability methods, and other procedures to determine if they are adequate under the circumstances;
Employing available technology to guard against reasonably foreseeable attempts to infiltrate the data that is stored.”
If proposed advisory opinion 12-3 is approved by the PEC, Florida will join at least 11 other states which have issued ethics opinions finding that cloud computing is ethical and providing guidelines for its use. As I also previously advised, Florida Bar Advisory Ethics Opinion 10-2 also provides guidance to lawyers to insure that confidential client information on the hard drives of discarded copiers, computers, scanners, and other electronic equipment is protected but does not address digital cloud computing.
Bottom line: After ethics advisory opinion 12-3 is finalized, it will provide Florida lawyers with more specific guidance on the ethics of cloud computing.
Be careful out there!
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
Andrew Spark
“lawyers must perform due diligence in researching the outside service provider(s) to ensure that adequate safeguards exist to protect information stored by the service provider(s)”
Isn’t that what LOMAS is for, or do all 60,000 of us have to do it individually, with no real qualifications to make that determination?
jcorsmeier
Andrew, I believe that the Bar’s position is that each lawyer is responsible for his or her decision regarding the use of third party vendors, including “cloud” services and that we can’t rely solely on an outside source, including LOMAS; however, LOMAS may be a good source of information to assist the lawyer in making a decision.