Storing Client Data in the Cloud is Ethical, With Safeguards

On September 11, 2015, the Tennessee Supreme Court Board of Professional Responsibility confirmed in Formal Opinion 2015-F-159 that a lawyer may ethically allow client confidential information to be stored in “the cloud.” In doing so, the lawyer must take reasonable care to ensure that client materials remain safe and confidential.

“The cloud” is a remote location controlled by a third party that provides storage or other computing services. Rather than having information stored on a server or personal computer, access to cloud computing technology allows lawyers to transmit, process, and manage their client’s data from a remote location. One benefit of cloud computing technology is that the cloud service provider takes on the responsibility for new technology and software updates.

Because technology is constantly changing, lawyers must stay abreast of these changes and ensure that they continue to comply with the rules of professional conduct. It must be noted that this opinion does not mandate any specific practices that a lawyer must follow when using cloud computing technology. Rather, the opinion provides guidance to lawyers on how to exercise judgment when using cloud technology in order to remain compliant with the rules of professional conduct. For example, when using cloud computing technology a lawyer must abide by several Rules: Rule 1.1, which requires a lawyer to act competently; Rule 1.6, which requires a lawyer to take practical measures to protect the confidentiality and security of the client information stored in the cloud technology; and Rule 1.9, which states that a lawyer has a duty to former clients to not reveal any client information relating to the representation except as the Rules permit or require with respect to the client.

This recent opinion follows several other states that have provided commentary on cloud technology and what lawyers in those jurisdictions should consider. The opinion provides commentary on the subject by different states, including Florida, Kentucky, and Alaska.

Although cloud-based services are available for use by lawyers, reasonable care must be exercised when storing client information in the cloud to ensure that it is stored safely. If the client’s information is at risk, this cloud could rain on the lawyer’s head!

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