Innovation in Practice I, 1018 ALBJ, Vol. 31, No. 5. 26

PositionVol. 31 5 Pg. 26

Innovation in Practice I

Vol. 31 No. 5 Pg. 26

Utah Bar Journal

October, 2018

September 2018

Ethical Considerations When Using Cloud-based Services by the Utah State Bar Innovation in Practice Committee

Lawyers have used remote, third party services for many years to support their practices. For many years, law firms and in-house legal departments have routinely contracted with (1) "brick-and-mortar" warehouses to store work product, client files, and other documents, (2) third party delivery and courier services to deliver similar information internally and to third parties, and (3) financial printers and investment bankers to create documents, provide data rooms for due diligence, and otherwise assist in the creation, transmission, and storage of confidential legal documents. In all cases, lawyers have depended on these third parties to maintain the confidentiality and security of client information and other confidential legal information these service providers have access to or possess.

Over the past two decades, electronic and internet-based platforms and services have significantly expanded the role third parties play in the creation, transmission, and storage of legal documents and confidential client files. Early examples include email service providers and remote access services, such as Citrix, that have access to or temporarily possess client information but generally did not store or maintain such information for a extended period. In recent years, cloud-based services have proliferated. For this article, the term "cloud-based services" means the storage, retrieval, management, processing, or transmission of information by a third party with such services being provided remotely over the Internet, often in a shared infrastructure, multi-tenant environment. Current examples include services provided by DropBox, Amazon Web Services, the Microsoft Azure Cloud Platform, Gmail and Google Docs, DocuSign, and other companies that provide online billing functions, data rooms, e-discovery services, and document or case management services. The data stored, managed, or transmitted through these services include client information, opposing party documents, and other confidential information relevant to the delivery of legal services.

Cloud-based services offer meaningful benefits such as increased flexibility and ease of access to data, lower facility and overhead expenses, and enhanced security and data protection compared to the lawyer's in-house capabilities. However, there are risks associated with using these services that implicate the lawyer's ethical duties. For example, the terms of use governing cloud-based services may require the lawyer to grant the service provider a broad license to use all information provided in the service, including client information. Additionally, the lawyer is outsourcing the protection and security of confidential information to the service provider.

While the expansive embrace and adoption of cloud-based services and products within the legal community has arguably made moot the question of whether a lawyer is ethically permitted to operate her or his practice in this manner, lawyers still need to consider their ethical duties when using such services and products.


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