Law Firms And Cloud Computing

Grazed from JDSupra.  Author: Editorial Staff.

The term “cloud computing” has been tossed about as the new trend in IT. Unfortunately, just as often has you hear the term echoed as the “next big thing” a comprehensible definition rarely follows. So what is cloud computing? The United States National Institute of Standards & Technology (“NIST”) defines cloud computing as:

A model for enabling ubiquitous, convenient, on-demand network access to a shared pool of configurable computing resources (e.g., networks, servers, storage, applications and services) that can be rapidly provisioned and released with minimal management effort or service provider interaction.  This cloud model is composed of five essential characteristics, three service models, and four deployment models.

Perhaps more succinctly put, cloud computing “involves the sum of a service to store, transmit and process information and employs the internet as the means to access and move the information."…

How does contracting with a cloud service provider impact confidential information that is shared with the third party? American Bar Association Model Rule 1.6 requires lawyers to maintain all information relating to client representation in confidence.  Under Model Rule 1.6 an attorney must take “reasonable precautions” to guard against inadvertent disclosure.  The exact formulation of what constitutes “reasonable precautions” is never provided; rather, the reasonableness of a precaution is a fact sensitive analysis.  Id.  An attorney must consider the risk of harm, the likelihood of disclosure, and the extent to which the privacy of the communication is protected by either law or confidentiality agreement.  Id.

In Warshak v. United States 490 F.3d 455, 473 (6^th Cir. 2007), the Court offered some guidance as to what constitutes appropriate precautions when dealing with a third party cloud service.  The Court reasoned that a key component in maintaining a reasonable expectation of privacy is the assurance from the third party host that the data “provided” will neither be monitored nor audited…

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