Kansas Bar Journal
Vol. 80 No. 7.
Thinking Ethics: Coping with New Technology
Vol. 80 No. 7 July 2011Thinking Ethics: Coping with New TechnologyBy Hon. Steve Leben Sometimes it's just as important to know the questions that need to be asked as it is to know all of the answers. At least that's my hope because all I can do in this column is to raise some questions that many Kansas attorn eys will need to give further thought to. Two recent ethics advisory opinions-from New York and California-present interesting questions on the adaptation of our ethics rules to new technology.
The New York opinion, N.Y. Ethics Op. 842 (2010), addresses whether lawyers can store electronic, but confidential, client information in cloud storage sites run by third parties. Lawyers have often contracted to store paper files off-site but there are truly different issues involved in cloud storage: A warehouse in Topeka used to store paper files isn't potentially accessible by anyone sitting at a computer anywhere in the world.
The New York advisory opinion said that an attorney or law firm needs to exercise reasonable care to maintain the confidentiality of client information when it's held electronically by a third party. These steps were among those recommended:
* Ensure that the online data-storage provider has an enforceable obligation to preserve confidentiality and security, and that the provider will notify the lawyer if served with process requiring the production of client information; * Investigate the provider's security measures, policies, recovery methods, and other procedures to determine whether they are adequate under the circumstances; * Investigate the provider's ability to purge and wipe all copies of the data, and to move the data to a different host if the lawyer becomes dissatisfied with the provider or for other reasons changes providers. The ethics advisory committee said that available technology should be used to guard against reasonably foreseeable attempts to infiltrate the stored data and that attorneys must "monitor the changing law of privilege to ensure that storing information in the 'cloud' will not waive or jeopardize any privilege protecting the documents."
The California opinion, California Formal Ethics Op. 2010-179, also finds cloud storage acceptable if the attorney takes...