One of the main concerns about document storage “in the cloud” has been the security of those documents. Who really has access to them? Are they really secure? What if the company goes out of business, what happens to my documents?
A corollary to this concern has been the ethics of on-line storage. If the documents are not really secure, does this breach the attorney’s ethical requirement to keep his client’s documents secure?
The fact is, that as on-line storage has evolved, most on-line repositories are considerably more secure that what a small law firm can afford to pay for equivalent on-site storage, especially in terms of off-site backup and virus protection.
Bar Associations are beginning to address the ethics question. Thus the Alabama Bar's Disciplinary Commission just ruled in favor of allowing cloud computing, stating that it does not per se cause confidentiality problems. This decision indicates that the likely view is that as long as an attorney ensures that the cloud computing provider reasonable ensures confidentiality of client data, privilege is not violated. In this sense, the cloud computing provider is essentially acting as a subcontractor of the attorney, which has been long recognized as fine as long as the subcontractor observes confidentiality.
A similar, although more restrictive opinion was issued by the Arizona bar a little over a year ago, and I analyzed it in my blog about a year ago.
The Alabana opinion states:
A lawyer may also choose to store or “back-up” client files via a third-party provider or internet-based server, provided that the lawyer exercises reasonable care in doing so. These third-party or internet-based servers may include what is commonly referred to as “cloud computing.”
A similar opinion was recently released by the Nevada bar
the lawyer must act competently and reasonably to safeguard confidential client information and communications from inadvertent and unauthorized disclosure. This may be accomplished while storing client information electronically with a third party to the same extent and subject to the same standards as with storing confidential paper files in a third party warehouse. . If the lawyer acts competently and reasonably to ensure the confidentiality of the information , then he or she does not violate SCR 156
Delaware has reportedly issued a similar opinion, although it is not yet on their web site.
Since it is obvious that cloud-based storage will continue to increase, state bar associations will surely endorse the practice in years to come.
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