In 2009, the American Bar Association established the ABA Commission on Ethics 20/20. The stated purpose of the Commission is to “perform a thorough review of the ABA Model Rules of Professional Conduct and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.”
Last week, the Commission issued a letter calling for comments on the issue of client confidentiality and lawyers’ use of technology, with a focus on cloud computing technologies.
In it, the Commission focused on discerning how much guidance was needed by lawyers in regard to their use of technology, including cloud computing. The Commission asserted that more guidance was likely needed because:
“When data was strictly in hard copy form, lawyers could easily discern how to satisfy their professional obligations and did not need elaborate ethical guidance. Now that data is predominantly in electronic form, however, the necessary precautions are more difficult to identify. One of the Commission’s goals is to identify the precautions that are either ethically necessary or professionally advisable.”
The Commission also suggested that amendments to the Model Rules of Professional conduct might be needed to regulate attorneys’ use of cloud computing in their practices.
I respectfully disagree. While further guidance would certainly assist lawyers in identifying the relevant security and confidentiality issues presented by the use of cloud computing services, additional regulation is unnecessary.
This is because regardless of the service provided by a third party, a lawyer’s ethical obligation is the same: Ensure the third-party provider employs security measures that effectively minimize the risk confidential information will be lost or disclosed.
Issuing new rules that effectively micromanage law offices’ technology choices, would prohibit lawyers from using emerging technologies in their law practices altogether — an unrealistic alternative in the 21st century.
A more reasonable course of action — and one that will allow the business of law to adapt to fast-paced, ever-changing technologies — would be to apply existing rules, while offering attorneys technology advice and guidance, thus allowing individual attorneys to make careful choices about the technologies that best fit their individual practices.