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!

To read our other posts on cloud computing click here.

Avvo Advisor®: A Game-Changer

On October 23, 2014, Avvo Inc., the leading online legal marketplace, launched Avvo Advisor, a service that provides fast, on-demand legal advice by phone for a fixed rate of $39.00 for a 15-minute conversation with an attorney.  This service is available either online at avvo.com/advisor or through a free Avvo Advisor iOS app and covers nine areas of law (and counting), including bankruptcy, criminal, divorce, employment, family, immigration, landlord-tenant, real estate and small business. Avvo Advisor is pushing the envelope by making professional legal assistance more accessible, affordable, and less time-consuming and hassle-ridden. The legal ethical implications of this limited scope service have yet to be fully explored, but it raises issues as to how to implement a viable conflicts check and whether legal services on demand will alter the traditional view of the attorney-client relationship.

As Mark Britton, Avvo’s founder and CEO, remarked, “we want to make access to legal help as routine as getting a medical checkup, and Avvo Advisor is a game-changing step towards that goal.”

Click here and here to read more.

Virtual Law Offices Permitted Under N.Y. Advertising Rules

According to the New York state bar’s ethics committee, attorney advertising ethics rules allow some nonresident attorneys who are licensed in New York to provide legal services to New Yorkers through a “purely virtual” office. In responding to the inquiry made by a transactional attorney wishing to establish a “virtual law office” in New York, where the attorney is licensed but does not live, the committee stated that the attorney must include the address of his principal office “which may be the Internet address of [the] virtual law office.”

As stated in the inquiry, the attorney working from a “virtual law office” would interact with clients electronically through a secure Internet portal, and use a relative residing in New York to answer calls made to the attorney’s New York number, forward mail to the attorney, and accept service of process on the attorney’s behalf. The attorney would advertise through electronic communications, such as a website, and inform prospective clients about the attorney’s “virtual office.”

Under Rule 7.1(h) of the New York Rules of Professional Conduct, which governs advertising, advertisements must contain the attorney’s principal law office address. The committee had previously concluded that Rule 7.1(h) “[provided] an independent basis for requiring a physical office.” Moreover, the New York Court of Appeals is currently considering a constitutional challenge to a statute that requires nonresident attorneys to maintain an office in the state in order to practice there.

However, the committee now decided that Rule 7.1(h) does not require an attorney who does only transactional work to have a physical office. The committee made it clear that the opinion “does not pass upon every potential form of virtual law practice,” and does not include litigation attorneys. The committee noted that Rule 7.1(h) states what an attorney’s advertising must contain, but does not expressly require attorneys to maintain a physical office, nor sets the standards for what would constitute such an office. The committee did not opine on how the court will resolve “the statutory issues regarding virtual law office” in the pending case, but made it clear that “neither Rule 7.1(h) nor any other advertising rule imposes or defines the contours of an attorney’s office or style of practice.”

The committee’s decision follows a trend of relaxing the physical office requirement. Other ethics panels, such as North Carolina and Pennsylvania, have allowed attorneys to operate a virtual law office under Rule 7.1(h), and a 2013 amendment eradicated the office requirement in New Jersey.

For more information, click here.

Florida Bar Officially Adopts Opinion on Cloud Computing

The Florida Bar Board of Governors affirmed Proposed Advisory Opinion 12-3 with slight modification on July 26, 2013.  The Advisory Opinion concerned lawyers’ use of cloud computing to store and remotely access client files.  By affirming the Advisory Opinion, the Board of Governors officially adopted the position that lawyers may use cloud computing, but they must perform “due diligence” to ensure that the service provider maintains adequate security and protects client confidentiality.

Click here to read the opinion as affirmed by the Florida Bar Board of Governors and here to read our previous post on Proposed Advisory Opinion 12-3.

“Waste Not, Want Not?”

It costs a heap of money to find all those cases and articles for that one brilliant lawyer’s argument! For many firms and legal services organizations, using Westlaw™ and LexisNexis® is too expensive to comprehend. This has led some lawyers to take advantage of opportunities to receive free access to these research tools, such as having law students using their school-issued passwords. Similarly, a former government employee may want to continue using his unlimited access to these research sites, even after he leaves government employ.

In a reciprocal discipline proceeding, the Oregon Supreme Court recently publicly reprimanded a lawyer, Everett Walton, because after leaving his job as a Hawaii special prosecutor, he continued to use the unlimited Westlaw access that he obtained while serving as a prosecutor for fourteen months. Upon switching employment, Walton decided to not waste the deeply discounted unlimited Westlaw access, especially because Thomson Reuters refused to allow him to cancel the contract. Instead, Walton used it to benefit the indigent clients of the legal aid organization for which he later began working, a seemingly noble cause. Despite the arguably laudable reason he used the access, the Oregon court found that Walton’s decision to avoid wasting his Westlaw access was conduct “involving dishonesty” in violation of Rule 8.4 of both the Hawai’i and Oregon Rules of Professional Conduct.

Check out the article in a recent edition of the ABA Journal Weekly as well as a link to the Oregon Supreme Court’s opinion here: Continuing Unlimited Access.