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ETHICALLY SPEAKING: To cloud or not to cloud, that’s the question

By: Michael Berzowski//January 27, 2012//

ETHICALLY SPEAKING: To cloud or not to cloud, that’s the question

By: Michael Berzowski//January 27, 2012//

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Michael Berzowski

The days of requiring a large onsite server room to store mass quantities of data may be coming to an end, but with the new array of offsite options come potential ethical concerns.

Through the use of cloud computing, people can store data on offsite servers and access it via the Internet.  But that involves storing information on computer services that are not owned by you or your law firm and are not physically on your premises.

Cloud computing raises ethical issues under state Supreme Court rules 20:1.1 Competence, 20:1.4 Communication, 20:1.6 Confidential Information, 20:1.15 Safekeeping Property and 20:5.3 Responsibilities regarding Non-Lawyer Assistants.

Several state bar associations have issued opinions with regard to cloud computing, but Wisconsin has not.

States that have issued opinions concluded that cloud computing or storage in the cloud is permissible for lawyers subject to various provisos such as all materials remain confidential and that reasonable safeguards are employed to ensure the data is protected from breaches, data loss and other risks.

Sometimes the directives are short and other times long and detailed. The guidance cautions lawyers to take reasonable efforts to ensure that services are protected in a manner that is compatible with professional obligations of the lawyers.

I think that when Wisconsin decides to address the cloud, it will jump on the bandwagon and approve cloud computing with appropriate provisos. The wild card is whether the blessing will be accompanied by short and succinct, or long and detailed guidance.

Until the issue is tackled in state, some representative security measures I recommend you consider are an agreement with the vendor on how it will handle confidential client information, the ability to retrieve data if the lawyer terminates or if the vendor goes out of business, a review of the vendor’s security policy and an evaluation of the vendor’s measures for safeguarding the security and confidentiality, plus an evaluation of the vendor’s backup procedure.

If you want unrestricted access to the data, you should probably have it stored elsewhere so if access is denied, you can acquire the data via another source. You should consider legal issues, particularly in the end user’s licensing agreement, such as choice of law, forum, damages and proprietary rights.

You should also be thinking about your financial obligations and what happens in the event of nonpayment. How do you terminate or retrieve your data? Does the vendor retain a copy? Should it?

Additional due diligence should take place with regard to data protection, which would include password protection and a review of public access. Encryption should be considered as well.

The advantages of cloud computing include cost savings, increased efficiency, reduced infrastructure, speed, ease of use and updates.

The disadvantages include loss of control over the data and security, compromise of client confidentiality, loss of access, interruption of service or data loss, and collapse of the business providing the service.

Some writers seem to believe cloud computing falls into the same category as using a messenger, storing closed files offsite and so on. I do not believe those situations are analogous for various reasons. For example, in the so-called paperless office, all client files, correspondence, contracts, etc. would be offsite. The loss of access to those materials would, in my opinion, be a catastrophe.

Assuming that you have satisfied yourself as to risk acceptance and the work involved, then my recommendation would be for you to engage the services of an expert since I do not believe that most lawyers have the ability, inclination or interest to familiarize themselves with the various aspects of cloud computing and then follow the rules to include never-ending obligations to monitor, police, train and modify the use of that particular tool.

So then the question becomes: Should you engage in cloud computing?

My answers is a definite maybe.

Michael Berzowski is a partner with Weiss Berzowski Brady LLP in Milwaukee. He can be reached at [email protected].

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