In September, the New York State Bar Association’s Committee on Professional Ethics released its Opinion 842, which was issued in response to an inquiry from a lawyer seeking guidance as to whether or not lawyers may use online computing resources — often referred to as “cloud computing” resources — to backup and store confidential client information. The committee indicated that the use of such resources is permitted so long as a lawyer takes reasonable steps to ensure that the information will be kept confidential and meets certain other requirements.
This post summarizes the committee’s decision and provides some additional factors counsel (both inside and outside) may want to consider to ensure that the use of on line resources does not compromise their obligations to their clients.
The committee’s opinion hinged on its interpretation of Rule 1.6 of the New York Rules of Professional Conduct that establishes a lawyer’s affirmative duty to safeguard confidential client information. Other states have similar if not identical confidentiality requirements. The duty applies not only to the lawyer but extends to service providers, such as online providers, the lawyer retains in the course of working for a client. Relying on a prior decision of the committee concerning the use of e-mail, and opinions from New Jersey and Arizona concerning the use of on line resources, the committee concluded that a lawyer may make use of cloud computing resources “provided that the lawyer takes reasonable care to ensure that the system is secure and that client confidentiality will be maintained.”
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Source: Westlaw News & Insight
By: Philip D. Robben
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