Is Your Jurisdiction Wasting Money to Make the Ethics of the Cloud Clear?

Last week, Bob Ambrogi posted an updated roundup  of state ethics decisions — 17 to date – that clear the cloud for use by lawyers. But while I appreciate the bars’ efforts, they’re a poor use of resources.

For starters, every one of those 17 ethics decisions says roughly the same thing.  Lawyers can use the cloud, but because client data is involved, they’re ethically obliged to use due diligence in vetting cloud vendors and understanding the terms of a cloud service provider agreement.  In addition, in most jurisdictions, lawyers are advised to explain risks of cloud computing to client and obtain their express consent for lawyer use of the cloud – because hey, after all, if lawyers can’t figure out how to deal with the risks, why not push them off on our clients?

Given that the states are pretty much in agreement about the ethical parameters of cloud use by lawyers, why is it necessary for each state to weigh in with a separate opinion?  I’d estimate that each of those cloud opinions took at least 50 hours to research, write, review and work through the bar’s multiple levels of bureaucracy.  Assuming a very modest $150/hour cost for the work, that’s a total at $127,000 for 17 decisions (50 x 17 x $150) that say the same thing; $375,000 if all the bars weighed in. What a waste. Wouldn’t it have been much more sensible for the states to pool their dollars, hire to top notch ethics expert at $400/hour who could have spent 150 hours to produce a first rate, model opinion that would apply in all states – for just $60,000 – $1200 per state.

I’m not suggesting that the states collaborate on enforcement. But what’s the point of drafting these ethics opinions in-house, especially by already harried ethics staff who while smart, are by necessity, generalists on most ethics issues.

But here’s the other problem with the bar decisions. Ethics is only one component of cloud computing. Cloud storage is also governed by state and federal laws and lawyers aren’t exempt from these requirements. Lawyers need to understand that even if the bars give cloud computing the thumbs up from an ethics perspective, they still need to comply with various other regulatory requirements. And that’s how the bars could spend the remainder of pooled funds: to educate lawyers on their legal obligations related to data breaches and disclosure requirements, and storage and privacy issues to assist in negotiating terms and conditions in vendor agreements to ensure adequate protections. That would be money well spent.  Unfortunately, the state regulators aren’t as clear about the benefits of collaboration as most cloud users – to the detriment of the lawyers they regulate.