These days, most legal regulators are pre-occupied with the question of whether lawyers may ethically move files to the cloud rather than whether they must. That’s not so in the medical profession, where the Affordable Care Act mandates the use of electronic medical records and patient portals which will presumably be implemented through cloud-based platforms.
But at least one solo doctor is complaining about the burdens imposed on small practitioners by an electronic records requirement. Brietbart (I know, consider the source…) reports that a solo physician in Pennsylvania, Francis Brescia is facing fines for non-compliance with ACA requirements, after a company he hired back in 2012 to convert his files went into bankruptcy and lost most of his records. Brescia warned that the ACA regulations impact small practices the hardest – and that they could face extinction, as a result. “We’re dinosaurs, we’re not going to be here in 10 years,” Brescia says. “You’re going to have nurse practitioners and PAs taking care of the public..”
What Brescia doesn’t realize, however, is that portals and electronic records could bring his practice into the 21st century and enable it to survive rather than the way of the mastodon. By providing a way for patients to view files or get in touch no matter where they may be, Brescia would make his medical expertise more accessible and affordable to his patients and by doing so, could compete more effectively with nurse practitioners.
But the competitive advantages of cloud technology aren’t the point of this post. Instead, the Breitbart piece made me wonder: what would happen if just as in the medical profession, lawyers were required to convert all client files to digital format and store them in the cloud where they could be accessed by patients through portals? Could solos and smalls accomplish transition to electronic document management seamlessly – or would they find themselves struggling like Brescia? Would non-legal professionals such as paralegals and other assistants have the skills and training to support lawyers operating in the cloud? Would today’s cloud-based law practice management providers have the capability to ramp up from, say, 10,000 users to hundreds of thousands while still retaining quality control? I’m not so sure. [Note - that's not intended to be a slight to any of the cloud practice management companies - but if all of the over a half million solo and small law firms were forced into the cloud, that would be an enormous bump in users].
While it took federal regulation and a massive overhaul of the healthcare system to push medical providers into the 21st century, there’s no reason to think that the legal profession will remain immune from electronic document requirements forever. The federal courts have mandated electronic filing for several years and no longer accept paper submissions (except as courtesy copies). Many consumer-based industries like credit card companies and retailers provide records and receipts electronically. What if our profession stopped thinking about cloud computing as discretionary and instead, started planning for it now as if it will be a requirement?
So what if, instead of rolling out the same old, same old ethics decisions on cloud use, the legal regulators set a deadline – say, three to five years from now – by which all law firms must retain digital records and the option of a cloud-based portals for clients who choose to use them? Why don’t the bars start investigating different types of cyber-security insurance plans and evaluate the capabilities of existing cloud providers to ensure an adequate supply chain to move lawyers en masse into the cloud?
The legal profession should start planning as if digital records and cloud platforms will be required, instead of waiting until they inevitably are. Because at that point, under compliance pressure and pain of penalty, solos and smalls may find themselves in the same boat that Dr. Brescia is in now.