Ethical Considerations for Lawyers Using the Cloud

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1 Ethical Considerations for Lawyers Using the Cloud Presentation by Peter J. Guffin, Esq. Pierce Atwood LLP (207) Maine State Bar Association Summer Meeting June 22, 2012

2 Maine Rules of Professional Conduct Rule 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. 2

3 Maine Rules of Professional Conduct Rule 1.1 Competence (cont d.) Maintaining Competence Comment [6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. 3

4 Maine Rules of Professional Conduct Rule 1.6 Confidentiality of Information (a) A lawyer shall not reveal a confidence or secret of a client unless, (i) the client gives informed consent; (ii) the lawyer reasonably believes that disclosure is authorized in order to carry out the representation; or (iii) the disclosure is permitted by paragraph (b). 4

5 Maine Rules of Professional Conduct Rule 1.6 Confidentiality of Information (cont d.) Acting Competently to Preserve Confidentiality Comment [16] A lawyer must act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer s supervision. 5

6 Maine State Bar Professional Ethics Opinion #194 (06/30/2008) Client Confidences: Confidential firm data held electronically and handled by technicians for thirdparty vendors Conclusion: With appropriate safeguards, an attorney may utilize transcription and computer server backup services remote from both the lawyer s physical office and lawyer s direct control or supervision without violating the attorney s ethical obligation to maintain client confidentiality. (Emphasis added.) 6

7 Maine State Bar Professional Ethics Opinion #194 (06/30/2008) (cont d.) The precise parameters of what constitutes appropriate standards are not defined in the rules or opinions, but are based on reasonable efforts to prevent the disclosure of confidential information. At a minimum, the lawyer should take steps to ensure that the company providing transcription or confidential data storage has a legally enforceable obligation to maintain the confidentiality of the client data involved. 7

8 Maine State Bar Professional Ethics Opinion #194 (06/30/2008) (cont d.) In addition, [i]n some circumstances... the lawyer would be well advised to include a contract provision requiring the contractor to inform the lawyer in the event the contractor becomes aware of any inappropriate use or disclosure of the confidential information. 8

9 Iowa State Bar Association Committee on Ethics and Practice Guidelines Ethics Opinion Use of Software as a Service Cloud Computing (09/09/2011) [The Rule] recognizes that the degree of protection to be afforded client information varies with the client, matter and information involved. Whatever form of SaaS is used, the lawyer must ensure that there is unfettered access to the data when it is needed. Likewise the lawyer must be able to determine the nature and degree of protection that will be afforded the data while residing elsewhere. 9

10 New York State Bar Association Committee on Professional Ethics: Opinion #842 (09/10/2010) Using an outside online storage provider to store client confidential information [A] lawyer may use an online cloud computer data backup system to store client files provided that the lawyer takes reasonable care to ensure that the system is secure and that client confidentiality will be maintained. Reasonable care... may include consideration of the following steps: 10

11 New York State Bar Association Committee on Professional Ethics: Opinion #842 (09/10/2010) (cont d.) 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; 11

12 New York State Bar Association Committee on Professional Ethics: Opinion #842 (09/10/2010) (cont d.) Employing available technology to guard against reasonably foreseeable attempts to infiltrate the data that is stored; 12

13 New York State Bar Association Committee on Professional Ethics: Opinion #842 (09/10/2010) (cont d.) [T]he lawyer should periodically reconfirm that the provider s security measures remain effective in light of advances in technology. If the lawyer learns information suggesting that the security measures used by the online data storage provider are insufficient to adequately protect the confidentiality of client information, or if the lawyer learns of any breach of confidentiality by the online storage provider, then the lawyer must investigate 13

14 New York State Bar Association Committee on Professional Ethics: Opinion #842 (09/10/2010) (cont d.) whether there has been any breach of his or her own clients confidential information, notify any affected clients, and discontinue use of the service unless the lawyer receives assurances that any security issues have been sufficiently remediated. Not only technology itself but also the law relating to technology and the protection of confidential communications is changing rapidly. Lawyers using online storage systems (and electronic means of communication generally) should monitor these legal 14

15 New York State Bar Association Committee on Professional Ethics: Opinion #842 (09/10/2010) (cont d.) developments, especially regarding instances when using technology may waive an otherwise applicable privilege. 15

16 New York State Bar Association Committee on Professional Ethics: Opinion #842 (09/10/2010) (cont d.) [E]xercising reasonable care under Rule 1.6 does not mean that the lawyer guarantees that the information is secure from any unauthorized access. 16

17 ABA Proposed Amendment to Comment 6 of Model Rule 1.1 Maintaining Competence Comment [6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. 17

18 ABA Proposed Amendment to Model Rule 1.6 Rule 1.6 Confidentiality of Information (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. 18

19 ABA Proposed Amendment to Comment 16 of Model Rule 1.6 Acting Competently to Preserve Confidentiality Comment [16] Paragraph (c) requires a A lawyer must to act competently to safeguard information relating to the representation of a client against unauthorized access by third parties and against inadvertent or unauthorized disclosure by the lawyer or other persons or entities who are participating in the representation of the client or who are subject to the lawyer s supervision or monitoring. See Rules 1.1, 5.1 and 5.3. The unauthorized access to, or the inadvertent or 19

20 Acting Competently to Preserve Confidentiality (cont d.) unauthorized disclosure of, confidential information does not constitute a violation of paragraph (c) if the lawyer has made reasonable efforts to prevent the access or disclosure. Factors to be considered in determining the reasonableness of the lawyer s efforts include the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the 20

21 Acting Competently to Preserve Confidentiality (cont d.) lawyer s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use). A client may require the lawyer to implement special security measures not required by this Rule or may give informed consent to forego security measures that would otherwise be required by this Rule. Whether a lawyer may be required to take additional steps to safeguard a client s information 21

22 Acting Competently to Preserve Confidentiality (cont d.) in order to comply with other law, such as state and federal laws that govern data privacy or that impose notification requirements upon the loss of, or unauthorized access to, electronic information, is beyond the scope of these Rules. 22

23 Iowa State Bar Ass n, Comm. on Ethics and Practice Guidelines, Op (2011), available at ce492/02566cb52c2192e f00 834cdb?OpenDocument. Me. Bar Ass n, Prof l Ethics Comm., Op. 194 (2008), available at &v=article. 23

24 N.Y. Comm. On Prof l Ethics, Op. 842 (2010), available at - emplate=/cm/contentdisplay.cfm&section=ethics_ Opinions&ContentID=

25 THANK YOU! Peter J. Guffin Pierce Atwood LLP Merrill s Wharf 254 Commercial Street Portland, ME Tel: (207)

26 ETHICAL CONSIDERATIONS FOR LAWYERS USING THE CLOUD Maine State Bar Association Summer Meeting June 22, 2012 Evaluating SaaS Vendors Listed below are common questions used to evaluate cloud-based service providers to determine if they will work for you. While no list is complete, it can serve as an evaluative baseline through which to consider a potential vendor. A. DATA PROTECTION 1. What type of encryption is used to protect my data? 2. What are their third party certifications and/or other industry certifications? 3. How secure is their physical environment? 4. How and how often do they test their systems? 5. Do they monitor for intrusions in real time? 6. Are their data centers U.S. based? B. DATA OWNERSHIP 1. What are their contract terms and conditions? 2. What systems are in place to restore my data in case of disaster? 3. What happens if I terminate my service? 4. Who owns the data? 5. Who has access to my data, besides me and my authorized staff? 6. Does the vendor outsource any of their services to third parties providers, and if so, what are their credentials? 7. Does their Terms of Service or Service Level Agreement address confidentiality? {W }

27 8. In what ways, if any, do they make use of my data (i.e. anonymously to track usage, etc.)? C. DATA AVAILABILITY 1. What are their uptime guarantees? 2. What financial penalties do they impose for late payments? 3. Do they have backups of their own data? 4. Do they offer a trial period? 5. How many data centers do they have in total? 6. If the vendor goes out of business, will I have access to the data and the software or source code? 7. Do they have a data recovery plan of their own in place? 8. Do they have a business continuity plan of their own in place? 9. Is there 24/7 customer service? Can you get someone on the phone? Peter J. Guffin, Esq. Pierce Atwood LLP (207) {W }

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