Category Archives: Lawyer ethics opinion could 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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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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