Lawyers e-Journal
Thursday, Mar. 7, 2013
Law Practice Management Tip
The intersection of convenience and care: Informed consent for cloud applications
On May 17 of last year, the Massachusetts Bar Association's House of Delegates approved for publication an
ethics opinion related to attorneys' use of cloud-based programs.
You can read the opinion in full here. (Massachusetts is one of 15 states that
have issued opinions respecting the ethics of cloud computing;
every state issuing an opinion has approved the practice. The American
Bar Association's Legal Technology Resource Center maintains a full list.) The main thrust of the ethics
opinion is that attorneys using cloud-based technology should make
reasonable efforts to secure the confidentiality of information
maintained on those systems.
However, it is the subsidiary point addressed in Opinion 12-03 that is the focus of this tip.
The opinion reads, in pertinent part, that the 'Lawyer remains
bound to follow an express instruction from his client that the
client's confidential information not be stored or transmitted by
means of the Internet, and that he should refrain from storing or
transmitting particularly sensitive client information by means of
the Internet without first seeking and obtaining the client's
express consent to do so.' This is an important consideration. The
opinion takes into account the fact that the client's file is the
client's, and that the attorney-steward has certain obligations to
protect the client's information (broad obligations are outlined at
the Massachusetts Rules of Professional Conduct, Rule 1.6). But, the opinion also addresses
other aspects of the attorney-client relationship, beyond the
securing of data (and, not just 'particularly sensitive' data --
all client information should be rendered confidential via vetting
and security procedures respecting cloud tools), including
balancing between convenience and transparency. It makes sense for
attorneys to use cloud services in a modern practice, due to cost
efficiencies and collaboration advantages. But, it also makes sense
to disclose to clients the services the law firm uses (you probably
won't find many clients these days who are unwilling to let you use
internet services at all, as the opinion seems to intimate
might be the case). This is a convenient way to educate clients
about the ways in which they'll communicate with the firm; it also
sets their minds at ease respecting the security of their data.
Clients are searching for good lawyers; but, they're also searching
for honest lawyers; and, transparency makes up the greater part of
honesty. And, in addition to providing a marketing edge (an
attorney who is clear and up-front about data security and
technology services appears as thorough, competent and savvy), the
acquisition of informed consent from clients respecting technology
products is potentially useful for protecting yourself in the event
of a breach of a particular service over which breach you had
little to no control.
Saying that one should get informed consent is one thing; but,
figuring out how to acquire informed consent is another thing. One
solution is to include a term in your fee agreement respecting the
technology products you use in your office and some information
respecting the security of those technology products. The fee
agreement memorializes the relationship between the attorney and
the client; but, smart lawyers use fee agreements as educational
tools for the clients they will work with. Before you get a
signature on your fee agreements, explain to your clients the
technology you use, with a brief overview of each product
(including those security components -- the ones the system
applies, and your own). You should also use this teaching moment to
educate your clients on the ways in which they can secure their own
data (relevant to the case), including maintaining confidentiality
for the data they send to you (e.g. -- apply strong personal
passwords for access to firm collaboration tools). While some
attorneys may view this sort of thing as just another
administrative hassle, many others will see this as an opportunity:
to educate clients, to protect themselves and to market the law
firm.
You can access all of the opinions of the MBA's Committee on Professional Ethics here.
Tip courtesy of Jared Correia, Law Office Management Assistance
Program.
Published March 7, 2013
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Section, which is complimentary for all MBA members,
contact LPM Section Chair Thomas J. Barbar or Vice
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