NC Bar Ethics Committee Reviews Cloud Computing Inquiry

For some reason, a firm here in my home state decided it was in their best interest to ask permission of the NC State Bar before using a SaaS product.  *really big sigh*  So now those of us who have been using SaaS applications for years for everything from email, tasks and calendaring to delivering legal services online now have about one week to step forward to provide comments related to the inquiry. 

The question posed was:  

 Is it within the RPC for an attorney/law firm to use online (“cloud computing”) practice management programs (e.g., the Clio program) as part of the practice of law?  These are instances where the software program is accessed online with a password and is not software installed on a computer within the firm’s office.

The Committee may take a long time to review all of the comments and come to any conclusion that they will publish.  In the mean time, I’ve been asking any and all attorneys in N.C. who use any cloud computing for their law practice management tasks to submit a comment.  The more the merrier. 

I think it will go a long way to showing that a blanket approach to this issue is not something that can be taken.  Hopefully the baby will not be thrown out with the bath water and a balanced opinion that accepts the benefits while acknowledging the risks and methods of mitigating those risks will be the final outcome.  I’ve heard from other attorneys that this is the same process that email had to go through to get acceptance by the state bars in order to be used in a law practice.

Ben Stevens, the Mac Lawyer, forwarded me this snippet from an email blast that the SC Bar sent out that actually offers a deal to their members for the use of a SaaS product. 

Protect your firm with CoreVault
Can you imagine losing hundreds of legal briefs, thousands of billable records or multitudes of vital client e-mails? Protect your firm’s critical data automatically, securely and off-site every day with CoreVault, recommended by more than 15 bar associations across the country… (emphasis mine)

I also have a list of other state bars’ ethics opinions that support the use of cloud computing to host law office data so there is hope that NC will not decide to be a lone duck.

Below are the bulleted points from my submission.  The ABA eLawyering Task Force is also submitting a comment which was posted on the elawyering listserv. 

The below comments are from the perspective of a solo or small firm practice using cloud computing for law practice management and only showcases the benefits to the clients, the attorneys and our need for greater access to justice. Gee, there is so much here to cover as far as the tech, the ethics and malpractice concerns, etc. that you could write a book — oh, wait.  I did that already.  (Coming from the ABA LPM hopefully Summer 2010).  Makes it hard to be brief.

Benefits of Cloud Computing in Law Practice Management for the Public

• Greater access to justice
• Affordable and accessible legal services for lower and moderate income individuals
• Pro-se litigants — lessening the burden on the court systems by unbundling legal services with attorney guidance
• Pro bono opportunities

Benefits of Using Cloud Computing for the Legal Professional

• Better quality of life through work/life balance and flexibility
• Technology streamlines and automates much of the routine work allowing the attorney to focus on the client and practicing law
• Technology may help prevent malpractice through automated checks and processes
• Lower overhead, less office waste, eco-friendly
• Expanded client base, increased competitive advantage for solos and small firms

Security Benefits of Cloud Computing

• A solo or small firm may have greater security and protection of client data through the use of cloud computing because this high level of security is now affordable to them.
• Regular data backups
• Security of data centers which are typically million-dollar investments with highly regulated environments with fire suppression, backup power, redundancy, security, and 24×7 monitoring. 
• Data stored on the server is encrypted using a 128 bit or greater Advanced Encryption Standard (AES) quality cipher algorithm — the same high-level security that banks and government entities use to secure their data.

Economic Benefits of Cloud Computing for the Solo and Small Firm

• Lower overhead costs
• Less expensive than paying for software, storage, and server hardware and having to run it internally with or without hiring an IT professional for the office
• Streamline your practice for greater efficiency
• Expand client base across jurisdiction
• Time saving
• No in-house software installation
•  Access to data anywhere the attorney may securely access the Internet
•  Regular software updates and new features added without disturbing the workflow (and typically at no extra cost)
• Clients appreciate the convenience, efficiency and feeling “in control” over the status of their legal matters 

Use of Cloud Computing in State Court Systems and by Non-profits for Increased Access to Justice

• For example, Law Help Interactive, powered by ProBono.net, helps online clients fill out legal forms that their state court system provides online
• For example, A2J (Access to Justice), powered by The Center for Access to Justice & Technology (CAJT), in partnership with the Center for Computer-Assisted Legal Instruction (CALI)

Using Cloud Computing to Meet a Public Need

• The delivery of legal services online, which relies on cloud computing, provides one solution to the consumer need for access to justice and also meets the needs of our changing legal profession.
• Online legal services permits the public to retain the services of an attorney without having to turn to less secure methods of solving their legal matters. More affordable pricing, convenience and less intimidation are all factors that make the virtual law office appealing to a large segment of the lower to middle income individuals in our country.  These virtual law offices may be completely web-based or integrated into a traditional law practice.  Both types, however, rely on cloud computing to operate.
• The biggest factors driving attorneys to seek alternative methods of law practice are their clients’ responses to the economic recession. Many of our clients are no longer able to afford the traditional billable hour, in-office rates of even the smaller law firms and solos.
• Clients are going online to seek out more convenient and affordable legal services.  Online demand for legal services and the number of people using the internet to transact business is surging. During January, 2009 — one month alone — an estimated 4.5 million people searched online at one of ten websites seeking legal solutions. Many of these online services that they turn to do not have attorney review of the final legal product.
• There is an opportunity here for the legal profession to step up to meet this need by providing their clients with the same online access to affordable and convenient legal services when appropriate for their legal needs.  Again, this may be through unbundled legal services online or a traditional law office with virtual access for clients.

It should be up to the individual attorney to decide for his or herself whether the use of cloud computing for law practice management is appropriate for their practice area and the clients that they serve.