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Attorney Technology Forecast: Cloudy with a Chance of Ethical Thunderstorms

Firm attorney R. Christopher Dix offers insight into a recent Florida Bar opinion informing attorneys on the ethical use of cloud computing. On July 26, 2013, The Florida Bar approved advisory ethics opinion 12-3 regarding the growing practice of “cloud computing.”  Cloud computing generally refers to the use of the Internet to access and perform computer services, including remote storage of electronic data.  Some examples of cloud computing include Gmail, iTunes, Facebook and Dropbox.

The Florida Bar’s primary concern with cloud computing is the increasing reliance by attorneys and other legal professionals on third-party service providers to maintain the confidentiality of information stored “in the cloud.”  Presumably, no ethically-responsible attorney would ever deliver a box of confidential client documents to a total stranger and then ask that total stranger to hold onto those documents, for free, for an undetermined amount of time, all the while expecting that total stranger to keep that box of documents confidential.  And yet, many attorneys do essentially the same thing when they use cloud-based storage solutions like Dropbox, or Apple’s iCloud, to store confidential client information.  Furthermore, even if an attorney sends an encrypted transmission of confidential information to a cloud-based storage solution, most of the data is not subsequently stored in the cloud in an encrypted format.  Someone with physical access to a third-party provider’s servers (e.g., a Dropbox employee) could obtain access to an attorney’s confidential information without the attorney’s knowledge or consent.

In addition to potential confidentiality issues related to cloud-based storage, many attorneys (and their clients) also use cloud-based email services, such as Google’s Gmail, to communicate regarding legal matters.  How many attorneys (or clients) using Gmail actually take the time to review Google’s “Terms of Service” and “Privacy Policy“?  Some legal commentators have more confidence than others regarding Google’s protection of confidential e-mail communications from disclosure.  The problem identified by The Florida Bar’s advisory opinion, however, is that attorneys and their clients may be using cloud-based services without first doing any due diligence regarding the privacy of their communications exchanged or stored in the cloud.  Florida Bar Advisory Opinion 12-3 makes clear that attorneys practicing law in Florida are ethically obligated to perform some reasonable due diligence prior to using cloud-based storage or communication services to provide legal services to clients.

In short, The Florida Bar’s advisory opinion informs Florida attorneys about the ethical use of cloud computing and requires Florida attorneys to actively seek to protect client confidentiality when communicating or storing data “in the cloud,” rather than just ignoring or disregarding the risks and threats to the security of their clients’ data and communications.

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