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August 15, 2012
Navigating the tech minefield

Committees examine cloud computing, e-filing, and the use of metatags

By Gary Blankenship
Senior Editor

It’s one thing to store your downloaded digital music or e-books “in the cloud,” but is it a safe place to stash confidential client information? Likewise, if the Internet guru you hired to manage your firm website wants to add some “invisible” words, could that be a problem?

Carl Schwait What about delegating e-filing duties for the state courts’ new electronic filing system to your nonlawyer aides?

The Bar Board of Governors, at its July 27 meeting, approved drafting advisory opinions on those three subjects to help lawyers avoid unexpected ethical detonations in the technology minefields.

The three requests to issue proposed opinions were presented by the Board Review Committee on Professional Ethics. BRCPE Chair Carl Schwait said the committee voted unanimously in all three instances to recommend the advisory opinions be drafted.

The cloud computing issue came to the board from the Professional Ethics Committee (see story in the August 1 Bar News), which asked the board to draft an advisory opinion on that topic. (Under Bar policies, the committee can only draft opinions on questions brought by lawyers or at the direction of the Board of Governors.)

Cloud computing is when companies offer offsite storage for digital information, which users can access with a variety of computers, smart phones, tablets, and similar devices anywhere they have Internet access. It can also relieve users of the need to buy and maintain more computer memory capability as well as provide offsite backup for critical information.

But, as Schwait told the board, questions have arisen on how secure such stored information is.

“The use of cloud computing . . . presents confidentiality concerns and becomes a very big topic on issues of what happens in the cloud, is there confidentiality, and things such as that,” he said. “Having gotten so many questions, the Professional Ethics Committee has come forward, and they would like to have you issue a directive that they look at it, come for a formal determination about it, and send it back to us.”

Metatags involve efforts to make websites get higher placements in the results of Internet search engines. Metatags are typically words or phrases that are invisible to viewers of the site, but are picked up by the search engines. Words are made invisible by setting the font size at zero or making the type the same color as the website background.

Search engine companies typically discourage the use of metatags, including the blacklisting of practitioners from any search results, but the practice has continued. There have been cases where one company has used a rival’s name and copyrighted product name in metatags to boost its search engine visibility. There has been at least one Florida Bar grievance case in which a lawyer claimed another lawyer used the first lawyer’s name and website address in metatags on the second lawyer’s website.

(The second lawyer claimed the information had been added unbeknownst to him by a “search engine optimization” company he had hired and that he had discovered the problem and was having the offending information removed before the grievance was filed.)

“There is now an issue on whether in fact the use of metatags and hidden text can end up being a device, which is misleading and manipulative, and the Standing Committee on Advertising has asked if the Board of Governors would allow them to do a formal opinion addressing a lawyer’s use of metatags and hidden text in their websites in order to optimize the website’s position in search engine results,” Schwait said.

The e-filing matter also will be handled by the ethics committee.

“There’s been an ongoing discussion on whether lawyers’ nonlawyer staff can use your login number or password,” Schwait told the board.

Backup materials to the board noted that the Supreme Court clerk’s office has been receiving inquiries on the issue, particularly since those filing documents may be required to certify that sensitive or confidential information has been identified or removed as required by Rules of Judicial Administration 2.420 and 2.425.

The Florida Courts E-filing Authority, which oversees the Internet portal through which court filings are made, for the moment is issuing IDs and passwords to lawyers, but not their nonlawyer staff. Last year, the authority adopted a policy that lawyers could allow nonlawyer staff to use their credentials to file documents, but later retracted that policy and currently has no position.

The Florida Courts Technology Commission last year voted to require that those e-filing certify they had complied with Rules 2.420 and 2.425. Last May, the commission changed that slightly to require that the attorney responsible for filing the document — not necessarily the person actually doing the filing — certifies compliance.

The issue also could be impacted by Ethics Opinion 87-11, which held that under no circumstances may a lawyer allow a nonlawyer employee to sign the attorney’s name and/or initials to notices of hearings or other pleadings.

Both committees are soliciting written comments from lawyers on what should be included in the advisory opinions. See the official notice, here.

[Revised: 03-13-2014]