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Cloud 101 for Legal Professionals

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A review of the applicable ABA rules, their implications and the ethical guidelines surrounding the use of cloud computing technology in the legal industry.

You’ve probably heard the term ‘cloud’ with reference to computers before. More specifically, the notion of cloud computing or cloud data storage as a way to increase your efficiency and mobility while practicing law. The visual the name conjures, one of unconnected and free floating data, probably does not engender confidence in this technology as a way to protect privileged and valuable client information. Technically speaking, the term cloud is used to describe a distributed or on-demand computing model where various elements of the user interface, process or storage is handled by remote machines linked together via the internet.

There are generally five of the ABA model rules that have implications for cloud-based products:

Rule 1.1 Competence: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation

Comment 6: To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.

This is largely self-explanatory. In terms of cloud storage the ‘thoroughness and preparation’ would extend to immediate and continual access to information, information protection and encryption, and disaster preparedness (disaster in this case including cyber-attacks as well as acts of god).

Rule 1.6 and Rule 1.15: in the cloud storage context overlap a great deal, so it’s helpful to talk about them together.

Rule 1.6 Confidentiality of Information

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

Paragraph (c) requires a lawyer to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons or entities who are participating in the representation of the client or who are subject to the lawyer’s supervision. The unauthorized access to, or the inadvertent or unauthorized disclosure of, confidential information does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure.

Rule 1.15 Safekeeping Property

While the comments focus on fiduciary responsibilities and client funds, files, information, documents, and other intellectual property must also be appropriately safeguarded

Comment 1 makes this clear: “A lawyer should hold property of others with the care required of a professional fiduciary” ...

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