The Cloud: What are Reasonable Precautions?

Last Friday, I presented a CLE for the Rutland County Bar Association. My assigned topic: the ethics of storing client information in the cloud.  I started by saying that I hoped it was my final seminar on the topic.  I was serious.

Let’s walk through this.

In general, a lawyer has a duty not to disclose information relating to the representation of a client absent client consent.  See, Rule 1.6.  A lawyer also has a duty to keep client property safe.  See, Rule 1.15.

I view the cloud as the latest in a long line of different places to store information.  In that sense, the cloud is not different than manila folders, boxes, offices, attics, basements, barns, file cabinets, file cabinets with locks, storage facilities, hard drives, floppy disks, CDs, and thumb drives.

No matter where a lawyer stores client information, a lawyer must act competently to protect the information against inadvertent or unauthorized disclosure. See, Rule 1.6, Comment [16].  When transmitting client information, a lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients.  Rule 1.6, Comment [17].

So, think about cloud storage like this:  client information is electronically transmitted to a place where it will be kept.  Thus, a lawyer must take reasonable precautions to protect client information both while it is in transit and while it is at rest.

In fact, that’s almost exactly what the VBA’s Professional Responsibility Committee said – SIX YEARS AGO when it issued Advisory Ethics Opinion 2010-06.  Here’s the digest of the opinion:

• “Vermont attorneys can utilize Software as a Service in connection with confidential client information, property, and communications, including for storage, processing, transmission, and calendaring of such materials, as long as they take reasonable precautions to protect the confidentiality of and to ensure access to these materials.”

(Aside: for anyone wondering why I included an advisory opinion about “Software as a Service” in a post on cloud computing, I remind you that Rule 1.0’s duty of competence includes tech competence.)

The question I hear most often is this:  “what are reasonable precautions?”  In Rutland, I suggested to the audience that they already know the answer, if only by treating the cloud as if it were a storage facility out on Old County Road. Some questions you might ask when considering that facility:

• who do you let into this facility?
• do you require a passcode or badge for the gate?
• are there locks on the individual units?
• who besides me has a key or knows the combination?
• can i get into my unit whenever i want to?
• what happens to my files if I don’t pay or if you go out of business?

Indeed, take a look at page 6 of the VBA Opinion.  The Committee suggested some of those exact questions when considering a cloud vendor.

Or, take a look at this post from Robert Ambrogi.  He writes that “[s]ome basic questions to ask of a cloud vendor, distilled from various ethics opinions, include:

• Is it a solid company with a good reputation and record?
• Can you get access to your data whenever you want, without restrictions?
• If your service is terminated – by you or by the company – can you retrieve your data?
• Does it allow use of advanced password protocols and two-step verification?
• What are its internal policies regarding employee and third-party access to your data?
• Is your data encrypted both while in transit and while at rest on the company’s servers?
• How is your data backed up?
• What security protections are in place at the data centers the company uses?”

Finally, remember that asking the questions isn’t enough.  You need to understand the answers or find someone who does.  For example, imagine this:

• You:   Will my data be encrypted in transmission and at rest?
• Vendor:  Yes.  In transmission, we use a BTTF Flux Capacitor.  At rest, we use the latest cloaking technology from Romii.
• You.  Sounds awesome. Sign me up.

Umm, no.  You just signed up to star in the next entry in Was That Wrong.

In conclusion, you may store client information in the cloud so long as you take reasonable precautions.  This entry includes links that will help you determine what “reasonable precautions” are.  Don’t fear the cloud, but know what you don’t know.

Speaking of which, info on the BTTF Flux Capacitor is HERE. And, for more on Romii cloaking technology, go HERE.