John M. Barkett, Ethical Challenges on the Horizon: Confidentiality, Competence and Cloud Computing

From the ABA Section of Litigation 2013 Annual Conference



“The message of these ethics opinions is clear: lawyers and law firms can engage third-party vendors in the cloud to store confidential information but they must do so competently with adequate supervision and implement reasonable steps to protect the confidentiality of the data. When one does business in the cloud, not every threat to confidentiality may be visible. Hence, lawyers must also stay abreast of changes in technology. As the ethics opinions discussed in this paper demonstrate, there are a number of security, data access, and data ownership and transfer issues that must be confronted by lawyers who wish to use cloud-computing services for data access and storage. Prudent lawyers will evaluate their current vulnerability to breaches of data security and the risk of data loss. They will then proceed cautiously and with expert help before they move away from existing forms of electronic data storage that do not present the array of cloud computing concerns outlined by the ABA 20/20 Commission or the Pennsylvania State Bar Ethics Committee.”


Model Rules: 1.1, 1.4, 1.6, 1.15, 1.16, 5.1, 5.2, 5.3


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