The book project called Educating the Digital Lawyer is now available for download as an epub file here. Editors Oliver Goodenough and Marc Lauritsen pulled together the collection from contributors most of whom met and discussed issues related to digital legal education during a working group that was part of the Future Ed Conference.

The book contains suggestions for changes that need to be made to legal education with a strong emphasis on how the law school curriculum needs to better prepare law students to practice law in a digital environment. Other online resources, such as videos, podcasts, webinars, or other written materials, related to topics in the book may be forthcoming. The resources in this book are useful not only to law school faculty and students, but also to practitioners who may need direction on how to fill in their own law school education gap. Yours truly contributed chapter 10 “What Should be in a Digital Curriculum: A Practitioner’s Must Have List.”

The ABA Standing Committee on the Delivery of Legal Services has written a letter to the Commission on Ethics 20/20 providing its recommendations regarding lawyer advertising rules. In an interesting move, the Committee has recommended the deletion of Model Rule 7.2(b).

For those of us in virtual practices who depend on online advertising methods perhaps moreso than traditional law firms, this would be a potentially revolutionary change to the rules. Model Rule 7.2(b) is the rule that prohibits a lawyer from giving anything of value for recommendation for his or her services with four exceptions. It is these exceptions and the speed at which online advertising methods have developed that has caused confusion and controversy over the past few years.

The Committee’s letter provides a background on how changes in online advertising methods have impacted the options available to the public seeking legal services. Because one of the primary goals of the Committee is to increase access to justice for individuals of moderate income levels, they are quick to point out that these new online methods actually allow for individuals of all income levels to find both the lawyers that they could work with as well as other resources that empower them to make educated decisions about the legal services they might need.

Allowing for greater collaboration with branded network concepts and their advertising methods that are direct to the consumer would also more greatly benefit solo and small firm practitioners (the largest growing firm size in our profession). As a virtual solo practitioner, I know this very well. I cannot compete with companies providing online legal services in terms of ranking at the top of a search engine because I don’t have millions of dollars in my advertising budget to bump me up to the top. That also means that the public has less chance of finding me and is limited in their choice to those firms or legal services companies that have more buying power.

In recommending the deletion of Model Rule 7.2(b), the Committee points to the underlying concerns that this rule was originally intended to address, such as “ambulance chasing”, lawyer independence about whether to take a case or not, risk that there may be misrepresentation of the lawyer’s services in the channeling of work to the lawyer, etc. They then note how each of these concerns may be already addressed in other existing model rules governing the lawyer’s conduct.

In further explanation for the recommendation, the Committee looked at the exceptions to 7.2(b) and noted that the terms there are “not clearly defined and are inconsistently applied from one state to another.” Of particular interest to virtual law practitioners is the Committee’s discussion of online models of advertising. The Zelotes v. Rousseau case is provided as an example of where an online advertising model was challenged due to the vagueness of 7.2(b).  That case raised the questions of “what is an online referral versus an online recommendation” as well as the ability of a lawyer to be assigned exclusive territories when advertising his or her services.  (Alabama State Bar Assn. v. RW Lynch Co., Inc., an older case involving tv ads where the court debated whether it was a group advertising model or referral service and also touched on geographic exclusivity.)

Many State’s interpretations of 7.2(b) differ. Of course, online advertising methods and the companies that provide them do not have the same boundaries. This creates confusion for lawyers – especially multijurisdictional virtual law firms – and providers as to how they should comply and how the rules will be interpreted with new and emerging online methods. (I just finished writing a law review article on regulatory barriers to multijurisdicational virtual law firms and the advertising rules are one among several of the Model Rules.)

The Committee also agrees with the Commission’s proposal to add a comment to Rule 7.3 regarding solicitation that would clarify that solicitation does not include “an Internet banner advertisement, a website or television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches.”  But they recommend that the Commission change the proposed comment to clarify the difference between a solicitation and advertisement including, among other recommended changes, that the communication would not be a solicitation if it were “directed to the general public through the media.”

Frankly, I was surprised and thrilled that the Standing Committee made such a bold recommendation to the Commission. I wish I were able to attend the hearings at the ABA mid-year meeting next week in New Orleans to attend the Commission’s hearings. I am anxious to hear from the leaders of the legal services companies that provide different forms of online advertising for lawyers, including Rocket Lawyer and MyLawyer, which are the most recent developments in the branded network concept. I believe Legal Zoom may also be adding or have already added a component that allows their customers to be channeled to lawyers who have paid to be a part of their network.

I am still processing the implications that the removal of 7.2(b) might have on the development of additional online advertising models. After all, even if the recommendations were accepted by the Commission, it would then have to be adopted and then each individual State would have the option of whether or not to follow suit. I find it highly unlikely that all of them would do so, especially the more protectionist states (you know who you are) and those more slow to adapt to how technology has impacted law practice. But it’s a wonderful first step forward that’s been long overdue. The Committee should be commended to taking such bold action!

The ABA eLawyering Task Force is accepting nomination forms for the annual James I. Keane Memorial Award for Excellence in eLawyering.

The award is given to a lawyer who has developed innovative legal service delivery over the Internet. The focus of the award is on the delivery of personal legal services, especially those that serve individuals of moderate to middle class means. Nominees may be individual lawyers, a law firm, or any other organization that delivers legal services to individuals.

Last year’s Keane Award recipient was Orange County California Legal Aid Society for their development of Legal Genie. The year before that, Lee Rosen, owner of Rosen Law Firm, was the recipient. The award is presented at a special ceremony at the ABA TECHSHOW in Chicago on March 30, 2012 and comes with other perks such as publication about the award recipient in Law Practice magazine and other LPM Publications.

Do you know of a lawyer, law firm or other organization that deserves nomination? Self-nomination is accepted as well. The deadline is February 15. The criteria for nomination and the form for submission may be found on the elawyering task force website.

I discussed the current state of the legal marketplace, where it is heading, and the changing expectations of clients in a more Internet-driven world. At the end, I posed a few questions for the audience that we then took into a break-out session.  Marc Lauritsen  joined us virtually to brainstorm these issues. The questions I posed for legal services organizations were:

How will you:

- Identify candidates for online delivery?

- Match lawyer volunteers with prospective online limited scope matters?

- Integrate online delivery methods?

- Address technology and security concerns in serving clients online?

- Use tech to collaborate with private practitioners, law schools, and legal SaaS providers to increase access to justice?

The legal aid sector has been hit hard with federal budget cuts. President of LSC, Jim Sandman, provided an inspiring and educational speech
during the conference that really made me more aware of how much of a crisis this funding cut is in terms of providing “justice for all” as the US Constitution dictates.

Many legal aid offices are faced with having to make cuts at a time when the public needs more assistance than ever. I was struck by how something as fundamental as providing Justice ended up competing for funding with other programs, such as NASA, and that someone has to do serious lobbying to compete for the legal services corporation’s slice of the funding. So if the federal funding is shrinking, what other solutions are out there that will make up for this loss and continue to expand access to legal services for the public?

Many at this conference believe technology is a huge part of the solution and everyone I spoke with was eager to find ways to use technology to
improve their services and expand their reach. Integrating a secure client portal or other web-based practice management system into their operations that would provide clients with online access to their lawyers might save time and cut costs and allow their lawyers to practice remotely. Completely web-based communication would not be possible for many of their legal cases, but even in those cases, the technology could still be used to cut out one or two in-person meetings, or just to provide the client with a greater feeling of control over their legal matter by providing 24/7 access to notes from the lawyer, reminders, documents, etc. that might cut down on phone tag with the office.

Many of these organizations seem to already be using document assembly and automation programs such as those provided by LawHelpInteractive or the A2J Author to provide self-help assistance to individuals through their legal aid websites. A representative from Orange County California, the creators of Legal Genie, were in attendance. During the breakout session we also talked about the potential of startups such as LawGives, which has the goal of connecting volunteer lawyers with legal aid organizations through the use of an online platform.

Another suggestion we had was for more collaboration with elawyers – lawyers with virtual law offices, lawyers whose practices run on technology
and who understand the cost and time savings that cloud-based applications can provide. If we can find a way to digitally connect legal services orgs with virtual lawyers, then I think the legal services sector would see an increase in the number of lawyers who want to volunteer their time to handle pro bono cases.

But it has to be online and the lawyers need to be provided with the necessary forms and instruction to unbundle the work and provide it to the
client and/or the legal aid offices online. Most of this work would not be full-service representation, but could still make a significant contribution to legal services sector and also provide assistance to self-help litigants who would then proceed on their own. The system of referring appropriate cases to a volunteer – either pro bono or “low bono” work and allowing the virtual lawyers the ability to work with those cases online from start to finish seems to be one missing piece of the puzzle in most states’ existing programs.

I’ll be the first to admit that I do not have a strong background working in the legal services sector, and I do not handle as much pro bono work
on my virtual law office as I would like to. I do estate planning work so there is not as much need in my practice area as there is in others.  And I lack the training to do the work that is needed.  Like most lawyers, I am still swimming in law school debt and I have a mortgage and a young family and, as priorities go, making sure that these things are taken care of tends to push everything else to the wayside. I know I’m not alone in this dilemma of wanting to serve but having trouble finding ways to fit in the training necessary to do the work and then shopping for the cases to handle. It may be easier for lawyers in larger law firms to do more pro bono volunteering, but for a solo or small firm, we have to factor it into our careful business balancing act.

I recently asked my virtual firm of fellow solos on ABA’s Solosez what technology they would like to see that would encourage them to do more volunteer work. Of course it differs from state to state depending on what resources they already have available, but I got some interesting feedback to share with the LSC TIG folks.

Here are a few of the technology tools that were suggested by other solos interested in using tech to provide pro bono services:

- Fill-in forms; downloadable documents in Word format that can be edited and submitted by the lawyer

- More adoption of efiling by the courts

- Listservs to answer basic questions; links to sample pleadings

- The ability to work on appellate cases where the lawyer could go online to review all of the documents in the case file and discuss with the other lawyers who had worked on the matter before the volunteer

- Provide specific research on issues in an ongoing case provided that the case files and communication could be conducted online

- A drop box system with templates and relevant research that legal aid and other volunteer lawyers could contribute to

- Online sign-up to volunteer for cases

- Allowing unbundling of case matters where appropriate and not requiring full-service representation in all cases even where it was not necessary or desired by the client

- Send the lawyer prepared documents electronically in a format which is editable. Hard copies have to be completely redone if there are errors which is too time consuming.

- Separate phone or other communication systems for the attorneys and the clients so that volunteers don’t have to spend so much time providing voice mail messages and waiting for responses when trying to work for clients.

- Free use of internet research services when working on volunteer cases

- An online version of small claims court. Arbitration or mediation of small claims, but broader, with a public mandate,
and a low barrier to access.

- Team up with other volunteer lawyers so that there is not only one lawyer on a case. For example, one lawyer could just write the briefs, or just research or be the negotiator, etc. while other volunteer lawyers are assigned other portions of a case. All of them could communicate online regarding the matter.

(Thanks to Jeena R. Belil, Carolyn Elefant, Jeffrey Burack, Jon Michael Probstein, Emilie Fairbanks, Monica Elkinton, Brian Lehman, Koren Boyd, and Ed Burcham for these suggestions.)

The hopeful message I took away from the conference is that many of those working in legal services are eager to look to technology as a necessary solution for increasing access to justice.  Virtual law practice in different formats will be a key component of this that will require both the adoption of secure client portals and online delivery methods by their local and state offices. But it will also need to include better online collaboration with virtual practitioners to fill the gap and expand access to justice.

The Association of American Law Schools (AALS) is holding its annual conference in D.C. this week. I’ll be taking part in a panel discussion entitled “Technological Innovation in Practice and Education.”

The conference has an entire workshop devoted to the future of the profession and legal ed. I see that as an acknowledgement that the legal education system is in need of innovation and reform and fast.  If the legal profession is going to be rescued from its downward spiral, it’s got to start with the law schools.

A few of the questions the workshop will address:

1) What new or different kinds of training will law schools of the future need to provide?

2) How can law schools better serve students seeking to develop critical skills in the areas demanded by changes in legal practice?

3) What innovations are currently underway in law schools?

4) How will projected changes in the economics of the legal profession affect law students’ priorities and law schools’ budgets?

For my session, I will be giving a presentation about virtual law practice and showing a demonstration of how myself and other lawyers work with clients and each other using cloud-based technology. But I will also be sharing some of the emerging trends in the future of legal service delivery that will impact future young lawyers. I’m hoping for a challenging Q&A session. If I get it with any audience, it aught to be this one.

There is a book to be published soon entitled “Educating the Digital Lawyer“, co-edited by Oliver Goodenough and Marc Lauritsen. This book will showcase chapters written to address many of the issues that this workshop will raise.  I wrote a chapter for it that laid out some of the topics that I thought should be in a law school curriculum and I probably won’t have time to share with the attendees here what I would like to see happen in law schools, but that’s what blogging is for.  So here goes. 

Starting point innovations I would like to see in law schools (this is purposefully avoiding sticky items like tuition, tenure, law school puffery of future employment odds, etc.):

1) Integration of web-based practice management and use of technology into not only practice management courses, but also into regular substantive law courses as a method of teaching those topics. Developing databases for these simulations would take time, but it could easily be updated and reused. And the students themselves could be recruited to populate this as a way to learn the material.

2) Students need to understand technology and security and how it affects confidentiality. They need a separate course in this or it needs to be added as a significant portion of a required ethics course. It’s not just the students who will practice IP law that will need to know these issues.

3) Add some form of online delivery service to the law school clinic to compliment the in-person services. This trains the students in the use of the technology which they may take into their own practices. It provides greater access for the clients and allows the clinic supervisor to oversee all of it.

4) Unbundling legal services or limited scope needs to be taught as a separate course or integrated into the required practice management course. In the next five years, almost all practitioners are going to either be offering unbundled services with their existing full service representation or they will be encountering the practice working with other self-help, pro se individuals. Best practices and ethics issues that come up need to be part of the law school education just as it should be with full service, traditional delivery.

5) Students need to have a realistic view of the future of legal services and the profession. This means talking about the not-so-highbrow topics like online marketing, social media and online networking, and how to be competitive against non-legal service providers. When they graduate with a J.D., do they know how to write a business plan and does that plan have an online marketing strategy that includes things like online lead generation, PPC marketing campaigns, legal crowdsourcing, collaborating with branded networks, developing legal web apps for increased SEO and LPO?  Yeah, most of that is critical stuff even if they end up in BigLaw where someone else in the firm is paid to handle those issues. And it’s not just important to know to make a living at practicing law, it’s kinda good to know how to do all that and stay compliant with state rules and regs.

(Along those lines, it looks like the editor of Above the Law, Elie Mystal, and Ashby Jones, a writer from The Wall Street Journal Law Blog, are attending the conference to talk about blogs and social media. With all the heat some law schools are getting from the main-stream media this past year, it will be interesting to sit in on some of these discussions.)

6) Take the students out of the traditional classroom and make them meet up with each other and the professor online. In a single classroom you can have a number of different types of learners. Not everyone learns best by listening to a lecturer or watching a powerpoint. Have the professors use different platforms over the course of a semester. This accomplishes a couple things.

First, it teaches the students to be flexible in communicating and listening because each client they encounter is going to also have a different concept of “accessibility” and comfort in communication. Some will jump into web conferencing and others will need traditional phone calls and face time. Law students must be able to hop between methods. This year I’m taking part in Law Without Walls, which is an awesome initiative to use technology to teach law students to communicate with entrepreneurs and practitioners outside of their schools.

Second, it would expose the students to different platforms for working with clients and with each other. Take the students into Second Life for class one day. Hold the next lecture in a Google Hangout and the next in a Join.me desktop sharing session. All sessions can be recorded and archived for the class to refer back to.

Third, it allows more flexibility for law students to attend lectures from home or at work without having to travel to the law school. It’s most likely going to mimic the way their careers will be with the increased mobility of lawyers. Why not get them used to it now and make it a learning tool at the same time?

I could come up with more examples but this is a good starting point. There are some pretty cool things being done overseas by folks like Paul Maharg who is using technology to teach law students how to be lawyers by simulating client interactions. With the eagerness of legal SaaS providers in the States, I can’t imagine a better way for the law schools here to get started in this type of initiative than to consider partnering with a technology provider who would be more than happy to expose the law student to their product for free while allowing the professor full reign to develop a custom course curriculum that integrated the use of technology to teach a subject area or simply modern practice management itself.

I’m looking forward to learning about more innovative legal education initiatives here in the next few days and will make an effort to write about it in the near future.

The question posed in the opinion:

May an attorney maintain a virtual law office practice (“VLO”) and still comply with her ethical obligations, if the communications with the client, and storage of and access to all information about the client’s matter, are all conducted solely through the Internet using the secure computer servers of a third-party vendor (i.e., “cloud computing”)?

The opinion acknowledges the impact that the Internet and technology have had on the legal profession and that “the provision of legal services via a VLO has started to emerge as an increasingly viable vehicle in which to deliver accessible and affordable legal services to the general public.”

The draft opinion finds that the ethics issues involved in the use of technology in law practice are the same for both a VLO and a traditional law practice. It refers attorneys to CA State Bar Formal Opinion 2010-179 which was published last December and covers in more detail the duty to protect client confidentiality when using  technology to transmit or store client information.

However, this draft opinion states that while the duties are the same, the use of a VLO requires more specific due diligence because of its “wholly outsourced Internet-based nature.” At the same time the opinion also provides in a footnote that not all VLOs will be completely web-based but may be incorporated into a traditional law firm structure.

Due diligence in the selection of the VLO vendor is required as is the duty to have a basic understanding of the security of the technology or to consult with someone who can advise on this. The opinion then provides a list of factors for the attorney operating a VLO to consider when conducting due diligence on a technology provider and references ABA, CA and other state bar ethics opinions where more guidance on these issues may be found. The factors to consider are:

1. Credential of the vendor,

2. Security of the data,

3. The technology provider’s transmission of the client’s information across jurisdictional boundaries and other third-party servers  (ie, understanding the transmission of your client data, relationships between your technology provider and their hosting company, and the security involved in this process),

4. The attorney’s ability to supervise the vendor (This one concerns me, especially with the ABA’s Commission on Ethics 20/20 attempting to add Internet-based providers to  the comments of a revised version of Model Rule 5.3. They need to distinguish between human and non-human outsourcing in this rule because there is no way your average attorney is going to be able to “monitor” or “supervise” a technology provider or negotiate any specifically unique terms for a SLA. At least not the same way an attorney would with outsourcing a document preparation or review service. This difference in the level of supervision possible should be addressed.), and

5) Terms of Service of Contract with Vendor.

I like that the proposed rule makes the point of requiring due diligence as an on-going process and recommends re-assessment of the technology and security on a regular basis. Basically, if you can’t keep up with the changes in technology and security, you have no business delivering legal services online.

The opinion suggests but does not require that the attorney receive consent from clients for the use of the technology.  I don’t think this is a big deal in the first place because it can easily be obtained from the client in the process of having them sign the engagement agreement.

The draft opinion’s discussion of competence is really no different that what occurs in a traditional law practice, just in a digital format (ex. web conferencing to “look the client in the eye” and to pick up on nonverbal cues) and using technology to communicate and affirm competency and understanding of the client.

Clients having sufficient access to the technology and knowledge of how to use it is discussed. This is probably not as much of an issue for a VLO because clients registering online to work with an attorney start out seeking online legal services so they are empowered by search engines and other resources and are typically competent in how to navigate the Internet to do any number of tasks online.

The opinion also acknowledges that limited scope representation services may be delivered online and briefly discusses the best practices for ensuring that this is handled properly.

The opinion concludes:

The Business and Professions Code and the Rules of Professional Conduct do not impose greater or different duties upon  a VLO practitioner operating in the  cloud than they do upon  attorneys practicing in a traditional non-VLO.
While Attorney may maintain a VLO in the cloud, Attorney may be required to take additional steps to confirm that she is reasonably addressing ethical concerns raised by issues unique to this type of VLO.  Failure by Attorney to
comply with her  ethical obligations relevant to these issues will preclude the operation of a VLO in the  cloud  as described.

I am winding up a fall course on virtual law practice for around 20 LLM students and several of them have created business plans to implement their own virtual law offices in CA, both completely web-based and integrated into more traditional law firms. This draft will be a welcome addition to their existing research into the subject as they strive to comply with their professional responsibilities.

I am going to review the draft opinion again to make sure I have processed it all, but from my initial review, it is a balanced draft of an ethics opinion that could provide much-needed guidance to members of the CA Bar looking to engage in virtual law practice.

The December issue of Law Practice Today is focused on elawyering with articles from myself and fellow ABA elawyering Task Force members discussing different forms of elawyering.

My article is a basic “get started with elawyering” introduction.  Here is an excerpt:

It is not necessary to convert to a completely paperless law office in the clouds in order to benefit from different methods of elawyering. Most lawyers would prefer to get their feet wet first and then gradually find ways to take portions of their practice digital – whether that means moving to cloud-based applications for certain tasks or something smaller in scope, such as the use of a virtual paralegal or virtual assistant. There are a few simple first steps that a lawyer might take to getting started with elawyering…..read more

Other articles in this issue include:

Expand Your Solo or Small Firm Practice Using Client Portals, by Donna Seyle

Document Assembly Over the Internet, by Richard S. Granat

Dancing in the Cloud, by Marc Lauritsen

An Update on Governing Cloud Computing, by Will Hornsby and Joseph Duffy

The Potentials and Perils of a Virtual Law Practice, by Ed Poll

Imagine shopping for your groceries and remembering that you needed to check in with your attorney regarding the status of your divorce case. You find a private legal services booth and step inside. You touch a few buttons on the computer tablet attached to the kiosk and a video of a receptionist who works for your law firm comes online to take your request. A few minutes later you chat with your attorney face to face via web conferencing and log off. Your attorney has informed you that she needs another item for the next hearing in your case. You add a note to your grocery list. When you get home, you will upload the document to your attorney online and schedule another video conference through your secure client portal – after putting the groceries away.

Such access to legal services is now available in the UK by a company called Instant Law UK.  The LegalFutures blog announced last week that the company was placing video conferencing kiosks in shopping centers this month and by the end of 2012 it hopes to have 120 kiosks across the country. The video conferencing service is also available to clients via the Internet. Areas of law that the company provides include Family, Employment, Personal Injury, Immigration, Landlord & Tenant, Medical Negligence, Contract Disputes, Wills, and Probate.

Prospective clients speak with a solicitor for an average of 15-20 minutes. That solicitor provides consultation and then refers them to one of the firms in the company’s network. It is unclear from the site whether the clients and solicitor may continue to work online or if they must at some point meet in person. I wonder how secure the service is and if the conversations held in video conference are encrypted or at least recorded and placed into a digital file for the client and solicistor’s future reference in the case.

For several years now I have thought it would be nice to have secure video conferencing attached to my virtual law office. It would be great to handle the free consultations straight from the website and then have them register for an account to continue with secure video or web conferencing that would be recorded and stored in their case file online. These legal kiosks in shopping centers take convenience and customer service to a whole new level. Naturally, there are pros and cons with this marketing strategy.

The legal profession in the UK is moving at a different pace than we are here after their Legal Services Act kicked into full swing this past October.  It will be interesting to see how quickly these franchised law firms proliferate through the country and whether their successes and failures will have any impact on the legal profession in the U.S. as our ABA Commission on Ethics 20/20 reconsiders issues such as nonlawyer ownership and alternative business structures for law firms.

I was pleased to find out last week that this blog has made the list of the ABA Journal’s top 100 law blogs for this year. Thank you for reading!

You can vote for your favorite blogs in different categories on the ABA Journal website, but they do require registration. This blog is listed under the LPM category, but they also have Technology, Opinion, Trial Practice, News, IP Law, and several other categories of blogs. It’s a great resource for finding or rediscovering new law blogs.

I’m honored to have been nominated to the list along with some of my fellow bloggers that I read regularly. I just finished writing a new book for the ABA LPM section about limited scope representation, the future of legal services and how law firms can adjust to the changing legal marketplace by incorporating unbundling into their law practices. Now that the book is finished, I’ll have more time to devote to keeping this blog updated with current information on virtual law practice and elawyering. Again, thank you for reading!

The NC Bar has published the revised version of it proposed ethics opinion entitled “Subscribing to Software as a Service While Fulfilling the Duties of Confidentiality and Preservation of Client Property”, 2011 FEO 6 on the website. It will also be published in the next issue of the NC State Bar Journal. 

You can read some of the history of this opinion in this post.  After a year or more of subcommittee review and revision, this latest version will hopefully be the final one that the Ethics Committee recommends for adoption by the Council at their January meeting.

The subcommittee removed the list of minimum requirements for the selection of a technology vendor. Many of the items on the list had raised concern as detailed here by myself and others. The new version of the opinion sticks with the “reasonable care” standard requiring the attorney to do his or her due diligence in researching the technology and any third-party provider. The proposed opinion states:

…a law firm may use SaaS if reasonable care is taken to minimize the risks of inadvertent disclosure of confidential information and to protect the security of client information and client files. A lawyer must fulfill the duties to protect confidential client information and to safeguard client files by applying the same diligence and competency to manage the risks of SaaS that the lawyer is required to apply when representing clients.

The opinion then goes on to state that because technology and security risks change so rapidly, the opinion will not include minimum requirements that might quickly become outdated and create a false sense of security for practitioners. Instead, they suggest that in order to conduct due diligence the attorney can 1) look for confidentiality provisions in the vendor’s user agreement or SLA, 2) review the SLA and any security policies, 3) evaluate how the vendor has stored secures the data  and 4) review how the vendor backs up the data.

Another positive change in the new version is the clarification in the first inquiry of just how broad a reach SaaS has in the legal profession:

Instances of SaaS software extend beyond the practice management sphere addressed above, and can include technologies as far-ranging as web-based email programs, online legal research software, online backup and storage, text messaging/SMS (short message service), voicemail on mobile or VoIP phones, online communication over social media, and beyond.

One thing I have encountered in speaking at different CLEs for lawyers is that many of them use the technology, but don’t know the terminology and are not even aware that they are already using a form of cloud computing. This clarification will help lawyers who depend on SaaS on a daily basis to understand that this opinion relates to them and that they have a responsibility to understand what they are using and to keep up to date.

This version of the proposed opinion makes the most sense to me based on the wide variety of use of SaaS in law practice management. I am hoping that there will not be any criticism of the new version so that this will become an adopted opinion. In the meantime, lawyers who need assistance understanding how to conduct due diligence in meeting a reasonable care standard for using SaaS should either hire an IT consultant to help them evaluate their use or find one of the many resources and blogs related to cloud computing and security to stay updated or find some of the ABA LTRC or other state bar guidelines or suggested best practice sites.