As web-based computing becomes an increasingly popular choice amongst lawyers, more state ethics committees are weighing in on the issue of lawyers using cloud computing in their practices. So far more than 20 jurisdictions have issued opinions, with all of them concluding that it is ethical for lawyers to use web-based software in their law practices.
Most recently, Wisconsin addressed this issue in Wisconsin Formal Ethics Opinion EF-15-01. The Committee considered how lawyers may go about ethically using cloud computing software in their practices.
In reaching its decision, the Committee explained that absolute security is, quite simply, an impossibility, and is therefore not required: “Lawyers are not required to guarantee that a breach of confidentiality cannot occur when using a cloud service provider, and … are not required to use only infallibly secure methods of communication.”
The Committee wisely noted that an elastic standard was required since “lawyers’ ethical duties are continually evolving as technology changes.” Then, the Committee moved on to the heart of the issue, concluding that lawyers may ethically use cloud computing in their practices.
“(C)loud computing is permissible as long as the lawyer adequately addresses the potential risks associated with it … (L)awyers must make reasonable efforts to protect client information and confidentiality as well as to protect the lawyer’s ability to reliably access and provide information relevant to a client’s matter when needed. To be reasonable, those efforts must be commensurate with the risks presented. Lawyers must exercise their professional judgment when adopting specific cloud-based services, just as they do when choosing and supervising other types of service providers.”
According to the Committee, specific requirements for assessing reasonableness would soon become obsolete with changing technologies and the risks would likewise vary with the technology involved, the lawyer’s areas of practice, and the individual needs of each client. For that reason, the Committee determined that “(l)awyers must exercise their professional judgment in adopting specific cloud-based services, just as they do when choosing and supervising other types of service providers, and specific requirements would do little to assist the exercise of professional judgment.”
So, that’s the low down on the most recent cloud computing ethics opinion. You can find other cloud ethics opinions from across the United States in this useful ABA chart.