In The Clouds? Florida Bar Issues Proposed Cloud Computing Ethics Opinion

In The Clouds? Florida Bar Issues Proposed Cloud Computing Ethics Opinion

Last month the Florida Bar Professional Ethics Committee (“Committee”) issued Proposed Advisory Opinion 12-3 in response to the Florida Bar Board of Governors request for an opinion regarding lawyers’ use of cloud computing to store and remotely access client files. The Florida Bar joins thirteen other States that have opined on cloud computing. (Click here to view ABA interactive map of cloud computing ethics opinions.)

Generally approving of other States’ previous advisory opinions regarding this matter, the Florida’s proposed opinion focuses on an attorney’s duty to perform due diligence in investigating a vendor’s “terms and conditions” prior to storing sensitive client information on that vendor’s cloud computing service. Notably, the Committee reiterates New York’s recommendation to limit the use of cloud computing services to vendors who contractually agree to preserve confidentiality and security. Further, the Committee adopted the view expressed by the Iowa Ethics Opinion 11-01, which states that to ethically and responsibly employ “cloud computing” technologies, attorneys need to have both unlimited access to their own secure documents, while being able to provide only limited access to third parties.

However, some have questioned whether the ethics guidelines are realistically obtainable. Sharon D. Nelson and John W. Simek point out  in their article analyzing Apple’s iCloud’s “Terms and Conditions,” that major cloud computing service providers may not offer adequate data protection for attorneys. Therefore, despite the benefits of remote data access that “cloud computing” services provide, the article suggests that  attorneys may not want to avail themselves of this technology  unless vendors agree to amend their standard “Terms and Conditions” to specifically address the ethical considerations of attorney-client confidentiality.