By Stephanie Kimbro, author of Virtual Law Practice: How to Deliver Legal Services Online and co-founder of VLOTech.
This past week the Legal Cloud Computing Association (LCCA) contributed responses to the ABA Commission on Ethics 20/20 and the North Carolina State Bar regarding proposed rule changes. The LCCA formed in December 2010 and is an organization of cloud computing software providers for the legal profession, including Clio (Themis Solutions, Inc.), DiaLawg, LLC, DirectLaw, Inc., NetDocuments, Nextpoint, RealPractice, Inc., Rocket Matter, LLC, and Total Attorneys, LLC.
Members of the LCCA collaborate to provide guidance to the legal profession based on the members’ collective experience in providing cloud-based technologies to attorneys. The LCCA chose to provide feedback to the ABA Commission on Ethics 20/20 and the NC State Bar Ethics Commission as part of its ongoing work to educate the profession about technology and security when practicing law in the cloud.
LLCA Responds to Opinion
The NC Ethics Commission had published a revised version of its previous proposed opinion on cloud computing (2010 FEO 7) and reissued it this past April as Proposed 2011 Formal Ethics Opinion 6, Subscribing to Software as a Service While Fulfilling the Duties of Confidentiality and Preservation of Client Property.
The LCCA submitted its response to this opinion which is also posted on the organization’s website. The response states “we believe that the additional minimum requirements imposed on lawyers as mandatory requirements will, as a practical matter, limit the ability of North Carolina lawyers to use cloud computing services in their practices, causing North Carolina’s lawyers to become less competitive with lawyers from other states. Rather than “mandatory requirements”, we believe that it makes more sense to establish basic principles and suggested guidelines, leaving to the individual attorney to use their best judgment to exercise reasonable care under the particular circumstances of their practice, in choosing a SaaS provider.”
The response continues to address five specific concerns that the organization has with the wording of the proposed opinion and suggests that a “due diligence” standard be established in the opinion rather than the imposition of specific minimum requirements.
The LCCA also submitted comments on the ABA Commission on Ethics 20/20’s Initial Draft Proposals on "Technology and Confidentiality".
Published on May 2, 2011, the proposed changes relate to the ABA Model Rules of Professional Conduct Model Rules 1.18 (duty to prospective clients), 7.2 (advertising) and 7.3 (direct contact with prospective clients). The LCCA was complimentary of the Commission’s proposed changes. In its response, the LCCA stated: “[i]n making its Proposals, the Committee adopts a sound approach to this challenge. It prudently avoids recommending cumbersome, detailed, or case-specific rules that would quickly become obsolete. Instead, the Committee sets down flexible principles that impose reasonable, workable requirements on the attorney, while protecting the general public and the profession. Ultimately, matching the exercise of reasonable professional judgment with the requirement to keep knowledgeable makes good sense and will provide a workable solution that can apply not only to cloud computing, but to other technology as it is released.”
The LCCA had also submitted written comments to the Commission late last year in response to a call for comments on the Commission’s Issues paper related to Client Confidentiality and the Use of Technology. For the time being, the primary goals of the LCCA appear to be focused on educating the legal profession about the responsible use of cloud computing in law practice and responding to requests for feedback and guidance in this quickly evolving area of technology and practice management.
Update: The North Carolina State Bar Ethics Committee has announced that it will be sending the proposed opinion back to the subcommittee to reconsider hte responses to inquiries #1 and #2.