March 10, 2013
Cloudy With A Chance Of An Ethical Violation
The New Hampshire Bar Association Ethics Committee has recently issued an opinion on cloud computing.
The internet has changed the practice of law in many ways, including how data is stored and accessed. "Cloud computing" can be an economical and efficient way to store and use data. However, a lawyer who uses cloud computing must be aware of its effect on the lawyer's professional responsibilities. The NHBA Ethics Committee adopts the consensus among states that a lawyer may use cloud computing consistent with his or her ethical obligations, as long as the lawyer takes reasonable steps to ensure that sensitive client information remains confidential.
The New Hampshire Ethics Committee concurs with the consensus among states that a lawyer may use cloud computing in a manner consistent with his or her ethical duties by taking reasonable steps to protect client data. Granted, a lawyer may not find a provider of cloud computing services whose terms of service address all of the issues addressed in this opinion], but it bears repeating, that while a lawyer need not become an expert in data storage, a lawyer must remain aware of how and where data is stored and what the service agreement says. Although the New Hampshire Rules of Professional Conduct do not impose a strict liability standard, the duties of confidentiality and competence are ongoing and not delegable. The requirement of competence means that even when storing data in the cloud, a lawyer must take reasonable steps to protect client information and cannot allow the storage and retrieval of data to become nebulous.
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