Legal ethics & cloud computing


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This presentation identifies and discusses certain ethical rules and opinions that apply to an Arizona lawyer's use of cloud computing in his or her practice. The concepts are generally applicable to lawyers in many other states as well.

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Legal ethics & cloud computing

  1. 1. Patrick X. FowlerSnell & Wilmer LLPPhoenix, Arizona(602) 382-6213  pfowler@swlaw.comLegal Ethics & Cloud ComputingJune 2013
  2. 2. 2©2013 Snell & Wilmer L.L.P.What is cloud computing?• Storing data over the internet, or• Running programs on remote serversover the internet◦ Remote server = not your desktop or officeserver
  3. 3. 3How are we using cloud computing?• Webmail• Productivity• Data Sharing• Data Storage• Social Media• Games• Retailing• Banking• Government3©2013 Snell & Wilmer L.L.P.
  4. 4. 4©2013 Snell & Wilmer L.L.P.Lawyers are heading for the cloud0102030405060708090100% of Respondents Who Have UsedWeb-Based Software 2011- 201320112012201315%20%30%Source: ABA
  5. 5. 55Why are we going to the cloud?• It’s much cheaper to rent than to own.◦ Outsourcing to the cloud reduces corporate datastorage costs by 80%, and requires a smaller IT staff• It’s more flexible/scalable/elastic.◦ Quickly expand and contract storage and computingneeds, based on demand.◦ Faster access to improved technology.• It’s more secure -- in some respects.◦ Remote back-up allows for disaster recovery©2013 Snell & Wilmer L.L.P.
  6. 6. 6How is data stored in the cloud?Per Google’s web site:• Data is not stored on a single machine or set ofmachines; data from all Google customers is distributedamongst a shared infrastructure composed of manycomputers located across Google’s many data centers.• Data is chunked and replicated over multiple systemsso that no one system is a single point of failure. Datachunks are given random file names and they’re notstored in clear text, so they’re not humanly readable.Source:©2013 Snell & Wilmer L.L.P.
  7. 7. The Issue…7©2013 Snell & Wilmer L.L.P.• May lawyers ethically use cloudcomputing technology in their practice?• Yes. Every state bar association toconsider the question has given itsqualified approval.Alabama Arizona California IowaMaine Massachusetts New Hampshire New JerseyNew York Nevada North Carolina OregonPennsylvania Vermont
  8. 8. Must Use “Reasonable Care”8©2013 Snell & Wilmer L.L.P.• Lawyers using cloud computingtechnology must use “reasonable care”with respect to:◦ Protecting client confidences,◦ Safekeeping client property/records, and◦ Working with the cloud computing provider
  9. 9. 9©2013 Snell & Wilmer L.L.P.Key Ethical Rules for Cloud Computing• ER 1.1: Competence• ER 1.6: Confidentiality of Information• ER 1.15: Safekeeping Property• ER 5.3: Responsibilities RegardingNonlawyer
  10. 10. 10©2013 Snell & Wilmer L.L.P.ER 1.1. CompetenceA lawyer shall provide competentrepresentation to a client. Competentrepresentation requires the legalknowledge, skill, thoroughness andpreparation reasonably necessary for therepresentation
  11. 11. 11©2013 Snell & Wilmer L.L.P.ABA ER 1.1, Comment 8 (2012)Maintaining CompetenceTo maintain the requisite knowledge and skill, alawyer should keep abreast of changes in thelaw and its practice, including the benefitsand risks associated with relevanttechnology, engage in continuing study andeducation and comply with all continuing legaleducation requirements to which the lawyer issubject.
  12. 12. 12©2013 Snell & Wilmer L.L.P.ER 1.1. Competence• The ABA comment does not require thatlawyers become computer scientists.• We can understand “benefits and risks” oftechnology without being engineers.• Lawyers don’t have to be ITprofessionals, but they need to knowwhen they need to hire one.
  13. 13. 13©2013 Snell & Wilmer L.L.P.Arizona Ethics Op. 05-04Electronic storage of client files ispermissible as long as lawyers and lawfirms “take competent and reasonablesteps to assure that the client’sconfidences are not disclosed to thirdparties through theft or inadvertence”
  14. 14. 14©2013 Snell & Wilmer L.L.P.Arizona Ethics Op. 09-04“It is … important that lawyers recognizetheir own competence limitationsregarding computer security measuresand take the necessary time and energyto become competent or alternativelyconsult available experts in the field.”
  15. 15. ©2013 Snell & Wilmer L.L.P.ER 1.6. Confidentiality of Information(a) A lawyer shall not reveal informationrelating to the representation of a clientunless the client gives informedconsent…15
  16. 16. ©2013 Snell & Wilmer L.L.P.ER 1.6. Confidentiality of Information• This rule applies to the communicationand storage of confidential clientinformation using the internet or cloudcomputing.◦ If reasonable and competent steps to protectclient information have been taken, thenusing the cloud is ethically permitted.◦ BUT, if the info is highly sensitive, then clientconsent to use the cloud may be necessary!16
  17. 17. 17©2013 Snell & Wilmer L.L.P.ER 1.15 Safekeeping Property(a) A lawyer shall hold property of clientsor third persons that is in the lawyer’spossession in connection with arepresentation separate from the lawyer’sown property…[o]ther property shall beidentified as such and appropriatelysafeguarded.• “other property” = client files/records
  18. 18. 18©2013 Snell & Wilmer L.L.P.ER 1.15 Safekeeping Property• A lawyer must:◦ Take reasonable steps to safeguard clientrecords that are stored on the cloud.◦ Assure that client records stored on the cloudare secure and available during and after therepresentation.◦ Confirm that the cloud-stored client file canbe returned to the client and be deleted fromthe cloud if the client so chooses.• See generally Arizona Ethics Op. 07-02
  19. 19. 19©2013 Snell & Wilmer L.L.P.ER 5.3 Nonlawyer Assistants• Secretaries• Paralegals• Law clerks• Accountants• IT professionals• Computer security experts• Cloud computing providers• E-discovery vendors
  20. 20. 20©2013 Snell & Wilmer L.L.P.ER 5.3 Nonlawyer AssistantsResponsibilities Regarding Nonlawyer Assistants(b) A lawyer having direct supervisory authorityover the nonlawyer shall make reasonableefforts to ensure that the person’s conduct iscompatible with the professional obligations ofthe lawyer
  21. 21. 21©2013 Snell & Wilmer L.L.P.ER 5.3 Nonlawyer AssistantsComment [1]…A lawyer must give such assistants appropriateinstruction and supervision concerning theethical aspects of their employment, particularlyregarding the obligation not to discloseinformation relating to the representation of theclient…
  22. 22. 22©2013 Snell & Wilmer L.L.P.ER 5.3 Nonlawyer Assistants• A lawyer using cloud computing must takereasonable steps to ensure that confidentialclient records remain:◦ Confidential◦ Secure◦ Accessible• Read and understand the terms of service!
  23. 23. Thank you!