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Cloud Computing — a Silver Lining Or Ethical Thunderstorm for Lawyers? by James M

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Cloud Computing — a Silver Lining Or Ethical Thunderstorm for Lawyers? by James M Consultus Electronica Cloud Computing — A Silver Lining or Ethical Thunderstorm for Lawyers? by James M. McCauley, Ethics Counsel, Virginia State Bar Because of the flagging economy, busi - cept of cloud computing is not new, its technology budget on competitive nesses and professionals are searching rapid expansion and diversification in advantage rather than infrastructure. for increased efficiency and reduced the IT and business world are recent. costs and risks in their endeavors. This is Cloud computing might also be • Identified cost: Your investment in especially true for the ever-increasing described as shifting information tech - hardware and software is minimized. risks and costs associated with informa - nology responsibility from the consumer Cost for the SaaS model can be based tion technology (IT) management. to service providers who deliver IT ser - on the number of users or the amount Today, the business world is overrun vices via the Internet —the “cloud.” The of data storage volume; it is easy to with entreaties by IT firms offering consumer relinquishes control over IT identify and budget for monthly or “cloud computing services” who adver - functions compared with legacy systems. annually. For the best pricing, the con - tise that “the future is here and it is in Responsibility shifts from the consumer tract terms are often multiyear commit - the clouds.” to a third party for infrastructure, appli - ments —sometimes three to five years. cation software, development platforms, What Is Cloud Computing? developer and programming staff, licens - • Save time: There is no installation, and ing and updates, security, and mainte - the SaaS provider takes care of updates, There is no one agreed definition of nance. Some might describe cloud including security, and is responsible “cloud computing.”1 Software as a computing as the virtualization of the for data storage and retrieval. Service (SaaS) is but one form of cloud computing process or as outsourcing IT. 2 computing referring to a category of Many firms today are considering • Intuitive: SaaS programs are more software delivered via the Internet to a switching from obtaining and loading intuitive and easier to use than tradi - web browser (such as Internet Explorer) software on their own computers to SaaS tional software. However, because they rather than installed directly onto the platforms to facilitate their practices, user’s computer. The resulting data is particularly in the areas of case manage - held by the third-party service provider ment and time and billing platforms. (or maybe by a data center provider by There are arguments for and against companies like Amazon, RackSpace or using SaaS. Examine those issues before other host), not on a computer or server you decide to switch over. Cloud com - within the law firm. Cloud computing is puting liberates the consumer from not new, but it has become a hot topic in many of the burdens of IT management the IT and business world. Software has issues, enabling the consumer to focus been employed over networks for on core activity. Cloud computing also decades, including through application reduces costs and expenses associated James M. McCauley is the ethics service providers that rose to promi - with purchasing and maintaining the counsel for the Virginia State Bar. He nence in the 1990s and then fizzled out hardware and software necessary to run and his staff write the draft advisory with other tech companies that went applications, security measures, backup, opinions for the Standing Committees bust in the early 2000s. Some lawyers and disaster recovery. on Legal Ethics and Unauthorized already use web-based applications in Practice of Law and provide informal advice to members of the bar, bench, their practice, including online legal Benefits of Cloud Computing and general public on lawyer regula - research (Westlaw, LexisNexis, tory matters, through the Legal Ethics CaseFinder or Fastcase), web-based e- • Save money: Cloud computing appli - Hotline (http://www.vsb.org/site/ mail (Gmail, Yahoo, or Hotmail), docu - cations greatly reduce the costs of elec - regulation/ethics/). McCauley teaches ment creation or collaboration tools tronic data management. These professional responsibility at the University of Richmond School of (Google Docs), and data backup services applications are less expensive than Law in Richmond and serves on the (Mozy, i365, IBackup, Steel Mountain, designing your own program or modi - American Bar Association’s Standing and Carbonite). These are all examples fying an existing program. Focus your Committee on Legal Ethics and of cloud computing. Although the con - Professionalism. www.vsb.org Vol. 59 | February 2011 | VIRGINIA LAWYER 49 are newer, they sometimes have more party vendor and secures an agreement to evaluate and deploy appropriate limited features than older software that the vendor will safeguard the confi - computer hardware and software to programs. dentiality of the information shared. Va. accomplish that end. An attorney Rule 1.6(b)(6). In the past, lawyers have who lacks or cannot reasonably • Staying current: Gain immediate outsourced copying and document pro - obtain that competence is ethically access to the latest innovations and duction to third-party vendors. required to retain an expert consul - updates at the provider’s expense. Confidentiality of client information tant who does have such compe - was protected by contractual arrange - tence. Arizona State Bar Op. 05-04. • Mobility: SaaS products allow lawyers ments between the law firm and the The Massachusetts Bar Association to access their software and their data third-party vendor. In other advisory Committee on Professional Ethics from many locations, without addi - opinions, the VSB Standing Committee issued an ethics opinion that “A law tional cost (with an Internet connec - on Legal Ethics has emphasized that firm may provide a third-party soft - tion). Because most SaaS is accessed lawyers must act competently to protect ware vendor with access to confi - through a web browser, system require - the confidentiality of information relat - dential client information stored on ments are minimal. ing to the representation of their clients, the firm’s computer system for the including protecting both open and purpose of allowing the vendor to • Service: You may get better service from closed client files. 3 support and maintain a computer a vendor. If you are considering SaaS, In ABA Formal Opinion 95-398 software application utilized by the ask a vendor about a service level agree - (1995) the American Bar Association’s law firm. … However, the law firm ment. A good agreement should guar - Standing Committee on Legal Ethics and must ‘make reasonable efforts to antee both a certain level of uptime for Professionalism recognized that “in this ensure’ that the conduct of the soft - the product and a response time for era of rapidly developing technology, ware vendor (or any other indepen - technical and support service requests. lawyers frequently use outside agencies dent service provider that the firm for numerous functions such as account - utilizes) ‘is compatible with the pro - Ethical Concerns for Lawyers Using ing, data processing, photocopying, fessional obligations of the Cloud Computing computer servicing, storage and paper lawyer[s],’ including the obligation disposal and that lawyers retaining such to protect confidential client infor - Concerns about Security and outside service providers are required to mation reflected in Rule 1.6(a). The Reliability . There are always concerns make reasonable efforts to prevent unau - fact that the vendor will provide about a new technology’s security and thorized disclosures of client informa - technical support and updates for reliability. Comment 16 to American Bar tion.” The opinion states that outside its product remotely via the Internet Association Model Rule 1.6 states that service providers would be considered to does not alter the Committee’s “[a] lawyer must act competently to be nonlawyer assistants under Model opinion.” Massachusetts Bar Op. safeguard information relating to the Rule 5.3, which states that lawyers have 2005-04 (March 3, 2005). representation of a client against inad - an obligation to ensure that the conduct vertent or unauthorized disclosure by of the nonlawyer employees they Attorneys are not required to guar - the lawyer or other persons who are par - employ, retain, or become associated antee that a breach of confidentiality ticipating in the representation of the with is compatible with the professional cannot occur when using an outside ser - client or who are under the lawyer’s obligations of the lawyer. But how does a vice provider. Rule 1.6 only requires the supervision.” Comment 17 states that lawyer exercise the supervision required lawyer to act with reasonable care to “the lawyer must take reasonable precau - of Rule 5.3 over a company such as protect information relating to the rep - tions to prevent the information from Google or Yahoo that essentially offers resentation of a client. Nevada’s Ethics coming into the hands of unintended cloud computing contracts on a take-it- Committee addressed the question of recipients.” or-leave-it basis? whether an outside party could be used There is no basis in the Virginia In addressing attorney use of the to store files in digital format or if this Rules of Professional Conduct for an Internet for client file storage, the State would be considered a breach of
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