Thursday, November 13, 2014

Cloud Computing--It's OK!

            As a soon-to-be attorney, or one who’s already in practice, you’ve probably given a good amount of thought to integrating cloud computing into your practice, or you’ve already made that step. You’ve probably also been worried about the potential ethical ramifications, since you’d be placing sensitive client information beyond your safekeeping. 
          
           A number of state bar associations have issued ethics opinions on the issue. For example, an opinion approved for publication by the Massachusetts Bar Association’s House of Delegates in 2012 permitted the use of cloud computing and applied a “reasonable care” standard when evaluating proper use. Specifically, it called for attorneys to periodically review the terms of service, restrictions to access to data, data portability, and vendor’s security practices; to follow clients’ express instructions regarding the use of cloud computing; and, to obtain express client approval before storing sensitive information via the internet. Click here to read the entire opinion.

            An informal advisory opinion issued by the Ohio State Bar association also adopted a reasonable care standard, and specifically called on attorneys using cloud technology to competently select a vendor for cloud storage; to preserve client confidentiality and safeguard client property; supervise cloud vendors; and, to communicate with the client (though this does not imply that storing client data in the cloud always requires prior client consultation).

            For a state-by-state overview, visit this page from the ABA. So far, the states that have addressed the ethics of cloud computing have all given it their blessing and applied a reasonable care standard for attorneys.
            
            What does cloud computing actually mean in practice, though? That’s less clear and there are a number of unanswered questions floating around as attorneys venture into this new frontier. Bar journals and law reviews have explored potential issues in greater detail than what has been discussed in ethics opinions. For example, in an article titled Being Prepared when the Cloud Rolls In, published in the New York Bar Journal, Natalie Sulimani lays out the clear benefits of migrating data to the cloud. For example, storing files on the cloud offers less opportunity to make a mistake than transferring files to a thumb drive, or storing paper files in an off-site warehouse. Cloud computing also reduces error by “[putting] files in the hands of competent IT professionals,” who are better able to preserve and store duplicate files and prevent loss than attorneys managing digital files on their own. She points out that there is actually little difference in potential ethical breaches when it comes to cloud computing when compared to storing files in a brick-and-mortar offsite storage facility; in either case, attorneys are handing over sensitive information to third parties.

            Something she overlooks, though, is that unauthorized third parties are more likely to hack into cloud storage and release certain documents than they are to break into a physical storage facility. O. Shane Balloun, in an article called Cloud Computing and the Practice of Law, published in the Wyoming Lawyer, makes this point when he states that “[a]lmost all electronic data can be accessed with enough persistence by the person or entity trying to do so.” Nonetheless, he ultimately concludes that the benefits of cloud computing far outweigh its risks, going so far as to predict that “it will be per se (rebuttably presumptive) professional malpractice if a client is prejudiced by an act of omission that reasonably could have been prevented by the use of cloud computing.” Earlier in the article, he extols the benefits of cloud computing, listing out all of its potential pros, including: the ability to access materials regardless of location or access to a particular device; the reliability of data storage and preservation; and, better and faster maintenance by the third-party knowledge experts managing the cloud.

            Ultimately, most attorneys and bar associations appear to be vastly in favor of the cloud, finding that its potential benefits outweigh any security risks. Migration to the cloud seems to be inevitable at this point, though only time will tell. 

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