Category Archives: Florida lawyer cloud computing

The Florida Bar’s Board of Governors approves Advisory Opinion 12-3 on cloud computing and protecting client confidentiality at its June 2013 meeting

Hello and welcome to this Ethics Alert blog with an update on The Florida Bar’s Ethics Advisory Opinion 12-3 on cloud computing and protecting client confidences when storing client records in the digital “cloud” using third party vendors.  The Florida Bar’s Board of Governors approved the opinion (with a minor revision to the final paragraph) at its June 2013 meeting in Boca Raton in conjunction with The Florida Bar’s annual convention.  Florida Bar Advisory Opinion 12-3 is at: http://www.floridabar.org/tfb/tfbetopin.nsf/SearchView/ETHICS,+OPINION+12-3?opendocument

The advisory opinion concludes that storing client confidential information and documents in the “cloud” is ethical with several important caveats:

This (Professional Ethics) Committee agrees with the opinions issued by the states that have addressed the issue. Cloud computing is permissible as long as the lawyer adequately addresses the potential risks associated with it. As indicated by other states that have addressed the issue, lawyers must perform due diligence in researching the outside service provider(s) to ensure that adequate safeguards exist to protect information stored by the service provider(s).  New York State Bar Ethics Opinion 842 suggests the following steps involve the appropriate due diligence:

Ensuring that the online data storage provider has an enforceable obligation to preserve confidentiality and security, and that the provider will notify the lawyer if served with process requiring the production of client information;

 

Investigating the online data storage provider’s security measures, policies, recoverability methods, and other procedures to determine if they are adequate under the circumstances;

 

Employing available technology to guard against reasonably foreseeable attempts to infiltrate the data that is stored.”

Florida now joins at least 11 other states which have issued ethics opinions finding that cloud computing is ethical and providing guidelines for its use.  Florida Bar Advisory Opinion 10-2 also provides guidance to lawyers to insure that confidential client information on the hard drives of discarded copiers, computers, scanners, and other electronic equipment is protected but does not address digital cloud computing.

Bottom line:  Although Florida Bar Advisory Opinions are for guidance only and are not precedential, Florida lawyers now have more clear guidance on the ethics of cloud computing and insuring that client confidences are protected.

Be careful out there!

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Florida Bar’s Professional Ethics Committee will consider approval of Proposed Advisory Opinion 12-3 on cloud computing ethics at its meeting on June 28, 2013

Hello and welcome to this Ethics Alert blog with an update on the status of The Florida Bar’s Proposed  Advisory Opinion 12-3 on the ethics of cloud computing and protecting client confidences when lawyers want to store records in the digital “cloud” using third party vendors.  The Florida Bar’s Professional Ethics Committee (PEC) will consider approval of the proposed opinion at its June 28, 2013 meeting in Boca Raton in conjunction with The Florida Bar’s annual convention.  The proposed advisory opinion is also on the Bar’s website at: http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/186D086CDDCBF92F85257B01007A5091/$FILE/12-03%20PAO.pdf?OpenElement

The opinion concludes that storing client confidential information and documents in the “cloud” is ethical with several important caveats.  “This Committee (PEC) agrees with the opinions issued by the states that have addressed the issue. Cloud computing is permissible as long as the lawyer adequately addresses the potential risks associated with it. As indicated by other states that have addressed the issue, lawyers must perform due diligence in researching the outside service provider(s) to ensure that adequate safeguards exist to protect information stored by the service provider(s).  New York State Bar Ethics Opinion 842 suggests the following steps involve the appropriate due diligence:

 

Ensuring that the online data storage provider has an enforceable obligation to preserve confidentiality and security, and that the provider will notify the lawyer if served with process requiring the production of client information;

 

Investigating the online data storage provider’s security measures, policies, recoverability methods, and other procedures to determine if they are adequate under the circumstances;

 

Employing available technology to guard against reasonably foreseeable attempts to infiltrate the data that is stored.”

If proposed advisory opinion 12-3 is approved by the PEC, Florida will join at least 11 other states which have issued ethics opinions finding that cloud computing is ethical and providing guidelines for its use.  As I also previously advised, Florida Bar Advisory Ethics Opinion 10-2 also provides guidance to lawyers to insure that confidential client information on the hard drives of discarded copiers, computers, scanners, and other electronic equipment is protected but does not address digital cloud computing.

Bottom line:  After ethics advisory opinion 12-3 is finalized, it will provide Florida lawyers with more specific guidance on the ethics of cloud computing.

Be careful out there!

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

 

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

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Part 1 of a review of the comprehensive new revised Florida lawyer advertising rules which become effective on May 1, 2013

Hello everyone and welcome to this Ethics Alert blog which is Part 1 of my summary review of the new Florida lawyer advertising rules which will become effective on May 1, 2013 at 12:01 am.  The Supreme Court of Florida’s opinion is at: http://www.floridasupremecourt.org/decisions/2013/sc11-1327.pdf.

As I indicated in my previous blog on the new rules, the opinion gave new numbers to the revised rules stating that the court was concerned that, without this modification “use of the same rule numbers could create confusion in case law for many years” since the new rules are “substantially different from the current rules.”

The revised advertising rules, as renumbered, are as follows:  Rule 4-7.11 (Application of Rules); 4-7.12 (Required Content); 4-7.13 (Deceptive and Inherently Misleading Advertisements); 4-7.14 (Potentially Misleading Advertisements); 4-7.15 (Unduly Manipulative or Intrusive Advertisements); 4-7.16 (Presumptively Valid Content); 4-7.17 (Payment for Advertising and Promotion); 4-7.18 (Direct Contact with Prospective Clients); 4-7.19 (Evaluation of Advertisements); 4-7.20 (Exemptions From the Filing and Review Requirement); 4-7.21 (Firm Names and Letterhead); 4-7.22 (Lawyer Referral Services); and 4-7.23 (Lawyer Directory).

Rule 4-7.11 (Application of Rules).  This new rule states that the Florida lawyer advertising rules apply to “all forms of communication in any print or electronic forum” which includes “websites, social networking, and video sharing media.”  The previous rules (specifically Rule 4-7.6) stated that Florida lawyer websites were “information upon request” and exempt from the lawyer advertising rules.  The Comment to this new rule states that the Florida advertising rules do not apply “to portions of a multistate firm’s website that relate to the provision of legal services in jurisdictions other than Florida.”

The new rule also states that the lawyer advertising rules apply to all lawyers, whether admitted in Florida or not, “who advertise that the lawyer provides legal services in Florida or who target advertisements for legal employment at Florida residents.”   Finally, the rule states that if the advertisements are in the “national media” (such as cable television), the rules do not apply “if the disclaimer ‘cases not accepted in Florida’ is plainly noted in the advertisement.”  As I have stated before, this is a significant change from the previous rules, which do not specifically indicate that they apply to all advertisements, and only address websites as an electronic forum and the current rule actually states that websites are not advertisements.

Rule 4-7.13 (Deceptive and Inherently Misleading Advertisements).  This new rule addresses deceptive or inherently misleading advertisements and provides a non-exclusive list of deceptive or inherently misleading statements, which include references to past results, comparisons of a lawyer’s skills, reputation, and record, and testimonials if the advertisements are not in compliance with the restrictions in the rule.  This new rule is a significant change from the current rules which prohibit testimonials and references to past results.

1.  References to past results will be permitted if “objectively verifiable.”  The Comment states that the affected client must give informed consent (full disclosure and waiver in writing) to the disclosure of results, even where “some or all of the information a lawyer may wish to advertise is in the public record.”

2.  Comparisons or characterizations of the advertiser’s “skills, experience, reputation or record” will be permitted if “objectively verifiable.”

3. Testimonials will be permitted; however, certain testimonials will not be permitted, including:  (a) matters on which the person making the testimonial is unqualified to evaluate; (b) if the experience in the testimonial is not the actual experience of the person making the testimonial; (b) if the testimonial is not representative of what clients of that lawyer or law firm generally experience; (d) a testimonial that has been written or drafted by the lawyer; (e) a testimonial in exchange for which the person making the testimonial has been given something of value; and/or (f) a testimonial that does not include the disclaimer that the prospective client may not obtain the same or similar results.  The Comment states that a “testimonial” is “a personal statement, affirmation, or endorsement by any person other than the advertising lawyer or a member of the advertising lawyer’s firm regarding the quality of the lawyer’s services or the results obtained through the representation.”

Bottom line:  When the revised rules become effective on May 1, 2013, they will be some of the most comprehensive advertisement rules in the country, particularly related to social media and electronic communication, and will be a sea change with regard to lawyer advertising regulation in Florida.  Stay tuned…

…and be careful out there!

Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

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The Florida Bar’s Professional Ethics Committee approves Advisory Opinion 12-3 approving cloud computing with caveats on confidentiality and other issues

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent approval by the Professional Ethics Committee (PEC) of Proposed Advisory Opinion (PAO) 12-3 on cloud computing with the deletion of language related to disclosure to the client and obtaining informed consent.  The revised Proposed Advisory Opinion 12-3 is online here: PAO 12-3

As background, at its June 22, 2012 meeting, the PEC voted to request that The Florida Bar Board of Governors (BOG) direct it to draft a proposed advisory opinion on lawyers use of cloud computing.  At its July 27, 2012 meeting, the BOG voted to approve the committee’s request.  The PEC deferred on consideration of the proposed opinion at its September 21, 2012 meeting for lack of time and the proposed opinion was considered by the PEC at its recent meeting on January 25, 2013.  The PEC voted 19-4 at the meeting to adopt the draft Proposed Advisory Opinion 12-3 with the deletion of the following language at lines 96-101:

In such cases, the lawyer should disclose to the client that the lawyer intends to work “in the cloud” and obtain the client’s informed consent.  Otherwise, the lawyer need not specifically obtain the client’s consent, as use of the cloud falls within the exception in Rule 4-1.6(c)(1) of serving the client’s interests.  If a client specifically prohibits the use of cloud computing, the lawyer may not do so.  Id.

 The proposed advisory opinion concludes:  “In summary, lawyers may use cloud computing if they take reasonable precautions to ensure that confidentiality of client information is maintained. The lawyer should research the service provider to be used, should ensure that the service provider maintains adequate security, should ensure that the lawyer has adequate access to the information stored remotely, and should consider backing up the data elsewhere as a precaution.”

The PEC will consider any comments on the proposed PAO at its meeting on June 28, 2013 at the Bar’s Annual Convention at the Boca Raton Resort & Club.  According to the Bar’s website, any comments “must contain the proposed advisory opinion number and clearly state the issues for the committee to consider.  A written argument may be included explaining why the Florida Bar member believes the committee’s opinion is either correct or incorrect and may contain citations to relevant authorities.  Any comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than March 18, 2013.”

Bottom line:  this Proposed Advisory Opinion 12-3 on cloud computing should be finalized by the PEC at its meeting in June and will then be reviewed by the Bar’s Board of Governors.  If it is approved by the BOG, the Advisory Opinion will become final.

Be careful out there!

Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

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Update: Florida Bar’s Board of Governors directs Professional Ethics Committee to prepare opinion on cloud computing

Hello and welcome to this Ethics Alert which will provide an update on the status of the potential ethics advisory opinion on cloud computing and the recent decision of the Board of Governors of The Florida Bar (BOG) to direct Professional Ethics Committee (PEC) to prepare an ethics opinion on protecting client confidences when lawyers wish to store records via digital “cloud” computing using third party vendors.

As I previously advised, the PEC met in Orlando on June 22, 2012 and one of the agenda items for the meeting was a discussion of out-of-state ethics opinions on cloud computing and consideration of whether the committee should ask the Bar’s Board of Governors to direct the committee to adopt an opinion addressing the issue.  This discussion had been deferred at the February 3, 2012 PEC meeting due to time constraints.

According to the recent report of BOG members Andy Sasso and Sandra Diamond, the BOG met on July 27, 2012 and voted to direct the Professional Ethics Committee to prepare two ethics advisory opinions.  One ethics opinion will address the issue of lawyers allowing non-lawyer staff to use lawyers’ IDs and passwords when electronically filing documents with the state court system.  The second ethics opinion will address the important issue of protecting confidential client information when lawyers store records via digital cloud computing using third party vendors.

In addition to these opinions, the Standing Committee on Advertising will prepare an advisory opinion on another important issue in our digital age: the use of “metatags”, which are words or phrases that are invisible to the typical website viewer but which are designed to make the site score highly with Internet search engines – on lawyer websites. The standing committee requested that it be directed to write the opinion in the wake of complaints and reports that some law firms have used the names of non-firm lawyers, other firm names, and even the domain names of other lawyers and firms as “metatags” to enhance the likelihood they will be listed high by search engines.

If the PEC advisory opinion determines that digital cloud computing using third party vendors is ethical, Florida will join the 11 other states which have issued ethics opinions finding that such cloud computing is ethical and providing guidelines for its use.  The other opinions are here: Massachusetts Ethics Opinion 12-03, North Carolina 2011 Formal Ethics Opinion 6, Pennsylvania Formal Opinion 2011-200, California Formal Opinion No. 2010-179, Alabama State Bar Ethics Opinion 2010-02, Arizona State Bar Formal Opinion 09-04, Nevada State Bar Formal Opinion No. 33, New York State Bar Association Opinion 842 of 2010, Iowa Op. 11-01, Oregon Formal Op. 2011-188, Vermont Advisory Ethics Op. 2010-6.

As I previously advised, since no jurisdiction has previously opined that cloud computing is unethical, the advisory opinion will most likely set forth guidelines cloud computing for lawyers and will not recommend that the use of cloud computing be prohibited.  Florida Bar Ethics Opinion 10-2 (which is attached), provides guidance to lawyers to insure that client information on hard drives of discarded copiers, computers, scanners, and other electronic equipment is protected but does not address digital cloud computing.

Bottom line:  The PEC will be soliciting comments on the proposed cloud computing ethics opinion and debating the language of the opinion.  After the ethics advisory opinion is finalized and issued, it will provide Florida lawyers with more specific guidance in this area.  Stay tuned for further updates…

…and be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

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