Are your client communications secure?
Lawyers may not realize that many of the programs they use on a daily basis involve cloud computing. For example: email, videoconferencing, file sharing, and digital assistants. Florida Bar Ethics Opinion 12-3 addresses cloud computing and states:
Lawyers may use cloud computing if they take reasonable precautions to ensure that confidentiality of client information is maintained, that the service provider maintains adequate security, and that the lawyer has adequate access to the information stored remotely. The lawyer should research the service provider to be used.
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Because cloud computing involves the use of a third party as a provider of services and involves the storage and use of data at a remote location that is also used by others outside an individual law firm, the use of cloud computing raises ethics concerns of confidentiality, competence, and proper supervision of nonlawyers.
This article points out the confidentiality concerns raised with use of these programs and devices.
Are you using a free email service such as Gmail, Yahoo, or AOL? If you are, then your communications may not be as confidential as you thought. Close review of the terms and conditions of your use of free email service may reveal that the service is collecting information including e-mails, attachments, comments, posts, and videos. This information may be used to assist in app development or may be shared with a parent company.
LegalFuel (The Practice Resource Center of The Florida Bar) advises members to “go with paid business class cloud service subscriptions over free service offerings” to avoid inadvertent access to a lawyer’s data and information. (Eckardt, Karla J. “Things You Should Know About Free Email & File Sharing Cloud Service” LegalFuel.com, January 22, 2019. Further, check the privacy settings for your email and opt out of any setting that shares your information with a third-party.
The courts are using Zoom, so certainly I can use Zoom for client consultations — right?
A review of Zoom’s terms of service (3)c. states:
Recordings: You are responsible for compliance with all recording laws. The host can choose to record Zoom meetings and Webinars. By using the Services, you are giving Zoom consent to store recordings for any or all Zoom meetings or webinars that you join, if such recordings are stored in our systems. You will receive a notification (visual or otherwise) when recording is enabled. If you do not consent to being recorded, you can choose to leave the meeting or webinar.
Concerns about unknowingly creating recordings also extend to Zoom’s breakout rooms. Lawyers should find out ahead of a videoconference if it will be recorded. If you are a participant, learn where to find the “recording” icon. If you are hosting, make sure that all parties are in agreement as to whether the video conference will be recorded — or not.
Ethics Opinion 12-3 states:
The main concern regarding cloud computing relates to confidentiality. Lawyers have an obligation to maintain as confidential all information that relates to a client’s representation, regardless of the source. Rule 4-1.6, Rules Regulating The Florida Bar. A lawyer may not voluntarily disclose any information relating to a client’s representation without either application of an exception to the confidentiality rule or the client’s informed consent. Id. A lawyer has the obligation to ensure that confidentiality of information is maintained by nonlawyers under the lawyer’s supervision, including nonlawyers that are third parties used by the lawyer in the provision of legal services. See, Florida Ethics Opinion 07-2 and 10-2.
Additionally, this committee has previously opined that lawyers have an obligation to remain current not only in developments in the law, but also developments in technology that affect the practice of law. Florida Ethics Opinion 10-2. Lawyers who use cloud computing therefore have an ethical obligation to understand the technology they are using and how it potentially impacts confidentiality of information relating to client matters, so that the lawyers may take appropriate steps to comply with their ethical obligations.
When selecting a cloud computing service, lawyers must do their research. Some services allow you to share a link to a document. “However, this approach has very little security. Anyone that knows this link may have access to your personal files or folders.” (“OUCH! Newsletter” Sans.org, November 2016.
Check the cloud computing service’s terms and conditions to see who can access your information. Find out if the cloud computing service is keeping data about your use. Make sure you understand the privacy settings your cloud computing service offers. Install updates promptly to keep your settings up to date.
Is Alexa or Google Home listening into your client consultation? Does your car have an assistant listening into client calls while you drive? Digital assistants send recordings to the cloud. The easiest way to avoid a confidentiality problem is to turn off or unplug these devices. Additionally, lawyers should learn how to delete recordings created by these devices.
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