Globally Protecting Client Confidentiality Using the Cloud
January 1, 2013
Ethics opinions of eleven states in the United States including most recently Massachusetts stated an attorney would not violate Model Rule of Professional Conduct 1.6 by using a cloud storage provider but the lawyer would have to undertake “reasonable efforts” to protect the client’s information. This article not only discusses the states’ suggestions as to what constitutes “reasonable efforts” but will focus on (1) Whether international cloud computing is viewed as ethical for protection of client confidential information; (2) what kind of compliance is necessary internationally to substantiate as “reasonable efforts;” (3) how the remotely stored data is implicated for electronic discovery and predictive coding; (4) whether the current international mutual legal assistance treaties alter the relationship between the ethical protection of client confidential information and the transfer of this information between countries computing systems and privacy laws.
Aside from exploring the issues stated above the article seeks to provide insight into how the international community and American owned companies operating internationally could transfer secured information stored on third party data-farms without violating the ethical implications of Model Rule 1.6 of Professional Conduct. This review is timely because of the multiple jurisdictions making decisions about whether it is ethical for attorneys to remotely store client data and the precedents this will set for international interactions.
Compliance with these standards and treaties places a hefty burden on an attorney. Discovering what kind and to what extent an attorney practicing in multiple jurisdictions must maintain currentness with the changes in the electronic rules for privacy. Reasonable efforts is a difficult standard to define when it is incorporating multiple countries input on the definition. This article will seek to clarify the requirements and best practices for the necessary “reasonable efforts” in order for a lawyer to stay in compliance.
Keywords: confidential, confidentiality, privacy, international, ethics, cloud, computing
JEL Classification: K41, K4, K49, K40
Date posted: January 10, 2013