Category Archives: Lawyer ethics opinion 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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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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Filed under Attorney Ethics, Attorney/client privilege and confidentiality, Florida lawyer cloud computing, Florida Lawyer Ethics and Professionalism, joe corsmeier, Lawyer cloud computing and confidentiality, Lawyer ethics opinion cloud computing, Lawyer ethics opinions