The Florida Bar’s Professional Ethics Committee approves Advisory Opinion 12-3 approving cloud computing with caveats on confidentiality and other issues

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent approval by the Professional Ethics Committee (PEC) of Proposed Advisory Opinion (PAO) 12-3 on cloud computing with the deletion of language related to disclosure to the client and obtaining informed consent.  The revised Proposed Advisory Opinion 12-3 is online here: PAO 12-3

As background, at its June 22, 2012 meeting, the PEC voted to request that The Florida Bar Board of Governors (BOG) direct it to draft a proposed advisory opinion on lawyers use of cloud computing.  At its July 27, 2012 meeting, the BOG voted to approve the committee’s request.  The PEC deferred on consideration of the proposed opinion at its September 21, 2012 meeting for lack of time and the proposed opinion was considered by the PEC at its recent meeting on January 25, 2013.  The PEC voted 19-4 at the meeting to adopt the draft Proposed Advisory Opinion 12-3 with the deletion of the following language at lines 96-101:

In such cases, the lawyer should disclose to the client that the lawyer intends to work “in the cloud” and obtain the client’s informed consent.  Otherwise, the lawyer need not specifically obtain the client’s consent, as use of the cloud falls within the exception in Rule 4-1.6(c)(1) of serving the client’s interests.  If a client specifically prohibits the use of cloud computing, the lawyer may not do so.  Id.

 The proposed advisory opinion concludes:  “In summary, lawyers may use cloud computing if they take reasonable precautions to ensure that confidentiality of client information is maintained. The lawyer should research the service provider to be used, should ensure that the service provider maintains adequate security, should ensure that the lawyer has adequate access to the information stored remotely, and should consider backing up the data elsewhere as a precaution.”

The PEC will consider any comments on the proposed PAO at its meeting on June 28, 2013 at the Bar’s Annual Convention at the Boca Raton Resort & Club.  According to the Bar’s website, any comments “must contain the proposed advisory opinion number and clearly state the issues for the committee to consider.  A written argument may be included explaining why the Florida Bar member believes the committee’s opinion is either correct or incorrect and may contain citations to relevant authorities.  Any comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than March 18, 2013.”

Bottom line:  this Proposed Advisory Opinion 12-3 on cloud computing should be finalized by the PEC at its meeting in June and will then be reviewed by the Bar’s Board of Governors.  If it is approved by the BOG, the Advisory Opinion will become final.

Be careful out there!

Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

About jcorsmeier

Joseph A. Corsmeier is an “AV” rated attorney practicing in Clearwater, Florida. He concentrates his practice primarily in the areas of defense of attorney disciplinary matters before The Florida Bar, attorney admission matters before the Florida Board of Bar Examiners, and professional license and disciplinary matters before the Boards of the State of Florida. He provides expert analysis and opinion on conflict of interest and other attorney disqualification and legal malpractice issues and he testified as an expert in the Florida courts. He served as an Assistant State Attorney in the Sixth Judicial Circuit from 1986 to 1990 where he prosecuted felonies exclusively from June 1987, and as Bar Counsel for The Florida Bar’s Department of Lawyer Regulation from 1990 to 1998. He also practices in the areas of estate planning and Medicaid qualification, workers’ compensation, and labor law. Mr. Corsmeier is the author of numerous articles for various bar publications, has spoken at numerous local and statewide seminars on various topics, including ethics and professionalism, and was an instructor of legal ethics for paralegals at Rollins College until the Tampa campus closed. He received his undergraduate degree from Florida State University and his J.D. from Mercer University. He is admitted to practice in all Florida Courts, the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, and the Middle District of Florida. He is a member of The Florida Bar, American Bar Association, the Association of Professional Responsibility Lawyers, and the Clearwater and St. Petersburg Bar Associations.
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