Cloud Computing for Lawyers- Chicago Bar Association Presentation

Cloud computing & your law practice

Nicole Black
Founder of lawtechTalk
www.lawtechtalk.com

Sunday, November 15, 2009

What is cloud computing and why
should you care?

Cloud computing is a “type of computing that is comparable to grid
computing, relies on sharing computing resources rather than having local
servers or personal devices to handle applications. The goal of cloud
computing is to apply traditional supercomputing power (normally used by
military and research facilities) to perform tens of trillions of computations per
second.”


Cloud computing is a “type of computing that is comparable to grid
computing, relies on sharing computing resources rather than having local
servers or personal devices to handle applications. The goal of cloud
computing is to apply traditional supercomputing power (normally used by
military and research facilities) to perform tens of trillions of computations per
second.”

Software as a service —or SaaS —is “[a] software delivery
model in which a software ﬁrm provides daily technical
operation, maintenance, and support for the software
provided to their client.”


A fundamentalist is a person
who considers whether a fact is
acceptable to their faith before
they explore it. As opposed to
a curious person who explores
ﬁrst and then considers
whether or not they want to
accept the ramiﬁcations.
--Seth Godin


Ethical issues to consider:

A. Attorney client conﬁdentiality

B.
Compare/contrast to traditional outsourcing relationships

C.
Transborder data ﬂow

D.
Meeting obligations of “reasonable” security

E.
Electronic evidence/e-discovery


QUESTION

“May a lawyer use an e-mail service provider that scans
e-mails by computer for keywords and then sends or
displays instantaneously (to the side of the e-mails in
question) computer-generated advertisements to users of
the service based on the e-mail communications?”

The New York State Bar Association Committee on Professional Ethics, Opinion
820-2/08/08


ANSWER

“Unless the lawyer learns information suggesting that
the provider is materially departing from conventional
privacy policies or is using the information it obtains by
computer-scanning of e-mails for a purpose that,unlike
computer-generated advertising, puts conﬁdentiality at
risk, the use of such e-mail services comports with DR
4-101…A lawyer may use an e-mail service provider
that conducts computer scans of e-mails to generate
computer advertising, where the e-mails are not
reviewed by or provided to other individuals.”


QUESTION

The question addressed in this opinion is whether a lawyer violates SCR 156
by storing confidential client information and/or communications, without
client consent, in an electronic format on a server or other device that is not
exclusively in the lawyer’s control.

ANSWER

In order to comply with the rule, 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 simply by contracting with a third party to store the
information, even if an unauthorized or inadvertent disclosure should occur.


The ABA Committee addressed an issue much closer to that discussed here
in Formal Opinion number 95-398, and concluded that a lawyer may give a
computer maintenance company access to confidential information in client
files, but that in order to comply with the obligation of client confidentiality, he
or she “must make reasonable efforts to ensure that the company has in
place, or will establish, reasonable procedures to protect the confidentiality
of client information.”

State Bar of Nevada Standing Committee on Ethics and Professional Responsibility, Formal Opinion
No. 33


In a decision issued last week by the United States District Court, District of
Oregon Opinion and Order in In re: US, Nos. 08-9131-MC, 08-9147-MC, the
government successfully argued that it need not notify the account holder
regarding a warrant that is served upon the ISP holder of the email account
(gmail). In reaching its decision, the court gave lip service to the concept that
emails are entitled to Fourth Amendment protection, but then stated:

“Much of the reluctance to apply traditional notions of third party disclosure to
the e-mail context seems to stem from a fundamental misunderstanding of the
lack of privacy we all have in our e-mails. Some people seem to think that they


In comparison, however, see footnote 7 from the October 2009 Memorandum
and Order issued by the United States District Court, Eastern District of New
York, in US v. Cioffi: “One preliminary matter is not in question: The
government does not dispute that Tannin has a reasonable expectation of privacy
in the contents of his personal email account. See United States v. Zavala, 541 F.
3d 562,577 (5th Cir. 2008) ("[C]ell phones contain a wealth of private
information, including emails, text messages, call histories, address books, and
subscriber numbers. [The defendant] had a reasonable expectation of privacy
regarding this information."); United States v. Forrester, 512 F.3d 500, 511 (9th
Cir. 2008) ("E-mail, like physical mail, has an outside address 'visible' to the
third-party carriers that transmit it to its intended location, and also a package of
content that the sender presumes will be read only by the intended recipient. The
privacy interests in these two forms of communication are identical. The
contents may deserve Fourth Amendment protection, but the address and size of
the package do not.").”


1. Encryption
2. Geo-redundancy
3. Data back ups
4. Extraction of data


Cloud Computing for Lawyers- Chicago Bar Association Presentation

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