Florida Proposed Ethics Opinion

Florida’s state bar association – a mandatory bar – has issued a proposed ethics opinion related to cloud computing.  It will be voted on June 28, based on comments received between now and then. Florida is one of the few bars that has stated what is probably a default assumption, which is that lawyers are increasingly seen to have an obligation to understand the technology that powers their law practice.

The proposed opinion doesn’t break any new ground, relying on opinions from Iowa and New York.  Lawyers in the state will be expected to use reasonable precautions to protect confidentiality, to understand the services they are using, and to ensure the lawyer has sufficient access to the information.  The suggestion that lawyers maintain their own backup of the data makes sense, although there remains the issue of what do you do with backed up data without the application that it came from.

Regulatory bodies are in an awkward spot.  They can’t possibly write ethics opinions that are both current and sufficiently detailed to completely answer technology-related ethics questions:  the technology outstrips the opinion.  When they do, they tend to rely on legalistic words – reasonably, adequate – and I’m not sure what else they could do.  Just as in other areas of the law, what constitutes “acting reasonably” or whether things are “adequate” is moving at the same rate as the subject matter.  Something that might have been reasonable 5 years ago in the cloud may not be any longer (free v. paid subscriptions, for example).  The ethics opinions are helpful to the extent they fill a vacuum.  Lawyers can assess measures like “reasonable” within their own practice and some will end up more conservative than others.

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