eDiscovery Daily Blog

• May 23, 2014

 

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 the ethics for lawyers in using and storing client data in the cloud.  Though, surprisingly few states 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):

• Alabama
• Arizona
• California
• Iowa
• Maine
• Massachusetts
• New Hampshire
• New Jersey
• New York
• Nevada
• North Carolina
• Oregon
• Pennsylvania
• Vermont

If you counted, that’s 14 total states with opinions – less than 28% of the total state jurisdictions (when you include DC).

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 states 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, Maine and New Jersey 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 14 states and publish their own opinions soon.

Thanks to Sharon Nelson and to the Ride the Lightning blog for the tip (who, in turn, acknowledged Brett Burney for providing the info at the Virginia State Bar Techshow).  It’s great to have so many smart people in our industry!

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.

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