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Bottom line: Although Florida Bar Advisory Opinions are for guidance only and are not precedential, Florida lawyers now have more clear guidance on the ethics of cloud computing and insuring that client confidences are protected.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