eDiscovery Daily Blog

Few States Still Have an Ethics Opinion Regarding Lawyer Cloud Usage: eDiscovery Best Practices

The Legal Technology Resource Center (LTRC) of the American Bar Association’s (ABA) web site has a great resource for those who want more information regarding a variety of technical topics, including the ethics for lawyers in using and storing client data in the cloud.  However, few states so far have published ethics opinions on the topic.

On their site in a page entitled Cloud Ethics Opinions Around the U.S., the ABA provides an interactive map of the states (see the image of it above), with the states that have published ethics opinions shown in blue.  On the actual site, you can either click on the state to scroll down to it or manually scroll down to the state by name alphabetically (more or less, the list has “Nevada” after “New Hampshire”, “New Jersey” and “New York”, just sayin’).  According to the ABA, here are the states that have published ethics opinions (with links to each state’s opinion):

If you counted, that’s 21* total states with opinions – less than half of the total state jurisdictions.  When we covered this three years ago, there were only 14 states at that time, so that’s at least some progress.

If you don’t feel like reading all of the opinions word for word, the ABA site provides two tabs below the interactive map:

  • Quick Reference tab that identifies whether cloud usage for client data is permitted (so far, all of the states listed above say “Yes”), the standard for use (currently all states with opinions enforce a reasonable care standard) and a bullet point list of specific requirements or recommendations;
  • Opinion Summaries tab that provides a brief summary for each of the opinions.

As the site notes, “in most opinions, the specific steps or factors listed are intended as non-binding recommendations or suggestions. Best practices may evolve depending on the sensitivity of the data or changes in the technology.”  Also, the site identifies opinions (Arizona, New Jersey and Washington to date) where the opinions address issues which aren’t directly labeled cloud computing or software as a service, but which share similar technology (e.g.. online backup and file storage).

Hopefully, more states will follow the examples of these 21 states and publish their own opinions soon.

*Thanks to Mark C. Palmer for pointing us to the opinion in Illinois!

So, what do you think? Are you surprised that more states don’t have published cloud ethics opinions?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.