Responses to ABA, North Carolina Proposals RE: Cloud Computing

Back in May I wrote about two sets of proposals that may impact the adoption of cloud computing technology among lawyers.

The first set of proposals comes from the ABA Commission on Ethics 20/20, which has issued an initial set of draft proposals addressing lawyers’ confidentiality-related obligations when using technology. The second set of proposals comes from the North Carolina State Bar in the form of in Proposed 2011 Formal Ethics Opinion 6 – Subscribing to Software as a Service While Fulfilling the Duties of Confidentiality and Preservation of Client Property.

Last week the comment periods for both proposals closed, and a number of individuals and organizations have published open responses to either the ABA, the NC State Bar or, in some cases, both. Let’s look at those responses and see if there are some common threads (if I have missed any relevant posts, please let me know in the comments):

ABA Commission on Ethics 20/20

• They Listened, they Really Listened by Carolyn Elefant, a frequent advocate of solos and small firms and author of the popular MyShingle blog. In her post, Carolyn applauds the Commission for incorporating the feedback she provided in response to the Issues Paper the Commission published. Carolyn went to great lengths to generate interest in the Commission’s efforts among solo and small firm lawyers – even going as far as to roll out a portal to act as a hub of information and communication – and her efforts clearly paid off.
• Maintaining Confidentiality in the Information Age by Niki Black, a legal technology expert and author of an upcoming book from the ABA on Cloud Computing. Niki describes the proposed new rule 1.6c) and its accompanying comment as a “broadly framed, elastic standard that assists attorneys in making careful choices about the technologies that best fit their individual practices.”
• Response to Commission on Ethics 20/20 Proposals by the Legal Cloud Computing Association, a consortium of leading cloud computing providers (disclosure: my company, Clio, is a member of the LCCA). In its open letter, the LCCA expresses its full support for the proposals made by the ABA Commission on Ethics 20/20, and thanks the ABA for contemplating the feedback provided in response to the original Issues Paper published by the Commission.

The general consensus among these authors is the ABA Commission on Ethics 20/20 has done a commendable job of incorporating feedback from lawyers and vendors alike, and has arrived at a set of proposals that are sufficiently flexible to accommodate a broad range of technologies, cloud-based and on-premise alike, in the practice of law.

North Carolina State Bar Proposed 2011FEO6

• Proposed NC Bar Opinion Limits Cloud Computing by Niki Black, a legal technology expert and author of an upcoming book from the ABA on Cloud Computing. In her post Niki cites a number of onerous requirements proposed by the FEO, and concludes the opinion in its current form is likely to severely impede the adoption of cloud computing among NC lawyers.
• Ethics Of Cloud Computing In NC – Take 2, by Erik Mazzone, a legal technology expert , Practice Management Advisor, and Director of the Center for Practice Management at the North Carolina Bar Association. Erik concludes the proposed FEO’s requirements of cloud computing providers, in particular the requirement that data be stored only within a specified geographic region, is unlikely to be met by cloud computing providers. While legal-specific cloud applications may contemplate rewriting their legal agreements to accomodate NC, non-legal-specific providers, such as Google, Dropbox, Evernote and others, are almost certain to ignore whatever requirements the NC State Bar requests of them. The end result, Erik concludes, is that NC-based lawyers will “be prohibited from using some of the best, most secure, most reliable, most cost-effective software available.”
• Response to North Carolina State Bar Proposed 2011FEO6 by the Legal Cloud Computing Association,a consortium of leading cloud computing providers (disclosure: my company, Clio, is a member of the LCCA). The LCCA concludes the onerous requirements of the Proposed FEO, detailed in full in the LCCA’s response to the NC State Bar, would force many cloud computing providers to withdraw from the NC market entirely, thus negatively impacting the technological capabilities and competitiveness of NC-based law firms.

The consensus on the NC Proposed FEO is that, while well-intentioned, as written it would have the net effect of making the vast majority of cloud-based applications inaccessible to NC-based lawyers.

What are your thoughts on these proposals? Please share them in the comments.