challenges & opportunities. * the idea behind icloud is to be able to access all your stuff no...

Challenges & Opportunities

* The idea behind iCloud is to be able to access all your stuff no matter what Apple device you're using. * Every user with an Apple ID gets 5 GB of storage for free to back up apps and settings on their iPhone, iPad, iPod. * The service also syncs your photos, documents, and email with your Mac and mobile devices. * Whenever your device is plugged in and connected to Wi-Fi, it'll automatically sync your settings, apps, music, photos, etc. to your iCloud account. * If you ever need to restore your device, you just need to log in with your Apple ID and all your stuff will download from iCloud

* Apple's operating system for Macs, called Mountain Lion, allows more non-Apple applications to take advantage of Documents in the Cloud. * This will allow text documents, presentations, drawings and more to be uploaded to iCloud. * Once your documents are saved in iCloud, you can access them from iCloud.com your Mac, or your iPhone and iPad.

* NOTE: Requires iO5 device * For Macs * Step 1: * Go to System Preferences, then select iCloud, * Step 2: * Click Manage in the bottom right corner. * This will bring up your saved items including backups, game saves, and documents. You'll get a clear view how much space you have.

* Iphone or iPad: * You can access this same menu by heading to Settings > iCloud > Storage & Backup > Manage Storage. * While inside you can free up space by doing several things: * Delete older backups * Select exactly what you want to back up to the cloud * Remove app backups that are too large or not important to you.

* First 5GB are free. * Apple offers 20 GB for $40 per year or 50GB for $100 per year. * Compared to Google Drive, which gives you 25 GB for $2.50 per month ($30 per year). And Dropbox, gives you 100 GB for $100 per year. * You can purchase more storage online on your Mac in System Preferences or from your iPhone or iPad under iCloud settings.

* First: Cloud term is this idea that we use the Internet as part of or an extension of our computers. So our data can live on the Internet just like it used to on our hard drive. You access it over the Internet, as opposed to going to a folder on your desktop. * And second? Potential for hackers to go after.

* RULE 3-7.1 CONFIDENTIALITY * (a) Scope of Confidentiality. All matters including files, preliminary investigation reports, interoffice memoranda, records of investigations, and the records in trials and other proceedings under these rules, except those disciplinary matters conducted in circuit courts, are property of The Florida Bar. All of those matters shall be confidential and shall not be disclosed except as provided herein. When disclosure is permitted under these rules, it shall be limited to information concerning the status of the proceedings and any information that is part of the public record as defined in these rules.

Cost Cost-Effective File Sharing Lower Software Costs Secure Data Backup Flexibility Increased Storage Capacity Peace of Mind (no server, software updates) Lower Overhead (staff, hardware, etc.)

Cost Network Dependence Security PRIVACY HIPAA records Gramm-Leach-Billey (personally identifiable information) Regulatory Issues International, Federal, State EU vs. USA on Privacy Constantly Evolving Liability Exposure from Standard Form Contracts Vague Service Obligations Limited Reps & Warranties No Indemnification

Source: ABA Journal, February 2013

What data will be stored in the cloud? Will this include unencrypted personal information? Where will data be stored, and will the customer have any control over where data are stored? Who will be able to access the data, and what rights will the cloud service provider have to the data (or to metadata relating to the stored data)? When and in what format will data be returned to the customer? What meaningful commitments is the cloud service provider willing to make with regard to data access, retention, protection, and security? Source: CIO Insight Magazine, June 2011

* Solo Practitioner * Multi-Attorney Office * Multi-Office Practice

File Backup & Storage Time & Billing Office Suites Document Collaboration E-Discovery Law Practice Management (LPM) What the Cloud Can Do

File Backup & Storage

Time & Billing

Office Suites & Document Collaboration

E-Discovery

Law Practice Management

* Late 1990s and Early 2000s * Proliferation of personal computers and ease of accessibility began to make electronically stored information (ESI) financially attractive. * Many law firms had begun implementing and utilizing ESI systems by mid 2000s. * New issues and concerns arise regarding client confidentiality of electronically stored media. * In response, some states began issuing advisory ethics opinions by the mid 2000s.

* Virginia Standing Committee on Legal Ethics Opinion 1818 * (September 3, 2005) * Permitted electronic storage of documents without paper retention. * New Jersey Committee on Professional Ethics Opinion 701 * Proposed in late 2005 * (April 24, 2006) * Permitted use of electronic PDF filing of client documents. * State Bar of Arizona Opinion No. 05-04 * July 2005 * Requires competent and reasonable steps to assure that the clients confidences are not disclosed to third parties.

* By mid to late 2000s many industries, including law firms, begin incorporating their electronically stored information into the cloud instead of storing electronic information on- site. * In response, several states issued advisory opinions dealing specifically with the particularized issues associated with cloud computing.

* Nevada Standing Committee on Ethics and Professional Responsibility Formal Opinion 33 * (February 9, 2006) * First state advisory opinion dealing specifically with cloud computing. * Permitted electronic storage of documents on a 3 rd party server. * Extended and adapted the basic principals underlying the New Jersey and Virginia advisory opinions.

* 13 states total have issued advisory opinions * 10 directly address cloud computing. * 3 others address issues with similar technology like online backups and file storage. * Florida just released a proposed advisory opinion January 25, 2013, and is pending final approval. * Up for consideration 06/28/13

americanbar.org

* All 14 states, including Florida, have adopted a reasonable care standard. * However, each state has adopted its own particularized set of specific requirements or recommendations.

* Stay abreast of best practices regarding data safeguards. (Alabama 2010-02) * Periodically review security measures. (Arizona 09-04) * Consult an expert if lawyers technology expertise is lacking. (California 2010-179)

* Ensure unfettered access to the data when it is needed, including removing it upon termination of the service. (Iowa 11-01) * Follow clients express instructions regarding use of cloud technology to store data. (Massachusetts 12-03) * Ensure adequate backup. (Oregon 2011-188)

* Use available technology to guard against foreseeable attempts to infiltrate data. (New Jersey 701, New York 842) * Discuss appropriateness of cloud storage with client if data is especially sensitive. (Vermont 2010-6)

* Adopted reasonable care approach * Florida committee proposed opinion 12-3 agreed with the advice given by: * Iowa Ethics committee * Opinion 11-01 * New York State committee on professional ethics * Opinion 842

* Ensuring that the online data storage provider has an enforceable obligation to preserve confidentiality and security. * Investigating the online data storage providers security measures. * Must employ available technology to guard against reasonably foreseeable attempts to infiltrate the data that is stored.

* Firm should consider the reputation of the service provider to be used, and whether its user agreement limits the service providers liability. * Whether service providers user agreement chooses the law or forum in which any dispute will be decided.

* Should consider whether the service provider retains the information. * Suggests that the lawyer consider whether the information stored via cloud computing is also stored elsewhere by the lawyer in the event the lawyer cannot access the information.

* 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. * this Committee believes that the lawyer should consider whether the lawyer should use the outside service provider or use additional security in specific matters in which the lawyer has proprietary client information

* Must use reasonable precautions to ensure that confidentiality of client information is maintained. * The lawyer should extensively research the service provider to be used. * The Lawyer must ensure that the service provider maintains adequate security.

* Should ensure that the lawyer has adequate access to the information stored remotely at all times. * Should consider backing up the data elsewhere as a precaution. * Florida adopted a reasonable care approach while incorporating many Iowa and New York recommendations and standards

* Constantly changing and evolving standard of what constitutes reasonable care. * Could open up firms and attorneys to malpractice claims if they do not actively educate and re-educate themselves on evolving protective measures. * Opinion suggests considering backing up data elsewhere. * May reduce or eliminate the benefits that cloud computing provides.

* Failure to get clients consent to use the cloud could result in malpractice! * Opinion suggests additional security or obtaining clients consent in specific matters where clients information is particularly sensitive. * Virtually all client information could be considered particularly sensitive, thus requiring clients consent.

* Terms of service conditions can change on a random and frequent basis. * Thus each change in the terms of service can render use of that particular cloud or SaaS provider unreasonable. * Apple may post on our website and/or will send an email to the primary address associated with your Account to provide notice of any material changes to the Service. That word may is a killer. * Have Attorneys Read the iCloud Terms and Conditions? * By Sharon D. Nelson and John W. Simek * Law Practice Today April 2012 * http://www.americanbar.org/publications/law_practice_today_home/law_practice_today_archive/april12/have- attorneys-read-the-icloud-terms-and-conditions.html * Accessed 02/08/13

* When the Terms & Conditions do change, firms and attorneys are forced with a tough decision. * Transfer data to another provider and incur a delay; or * Take a possibly unreasonable risk. * Additionally, a lack of technology expertise may result in a misunderstanding of what risks are present in the Terms & Conditions. * Each time the Terms and Conditions changes is another exposure to the risk of malpractice.

* One of the more disturbing provisions states that Apple will give your data to any law enforcement authority, government official or third party if they feel it appropriate, necessary or legally required. * Have Attorneys Read the iCloud Terms and Conditions? * By Sharon D. Nelson and John W. Simek * Law Practice Today April 2012 * http://www.americanbar.org/publications/law_practice_today_home/law_practice_today_archive/april12/have- attorneys-read-the-icloud-terms-and-conditions.html * Accessed 02/08/13 * This is letting Apple or another cloud or SaaS provider substitute their professional judgment for yours.

* So we know Florida is a reasonable care state. Now what? * Model Rules * Reasonable and other vague words * How do I do that thing I need to do?

* Model Rule 4-1.6 * Consent Required to Reveal Information * Requires informed consent of the client * Florida lawyers must take reasonable steps to protect confidential information in all types of documents and information that leave the lawyers offices, including electronic documents and electronic communications

* Model Rule 4-4.4 * Duties of a lawyer when sending/receiving an electronic document * Affirmative duty to take reasonable steps to safeguard the confidentiality of all communications sent by electronic means

* Model Rule 4-5.3 * Your employees: * Any work done by the inquiring attorneys nonlawyer employees must be supervised by the attorney

* 4-1.6: lawyers must ensure confidentiality by taking reasonable steps under lawyers control to prevent exposure of information. * 4-1.1: competence requires staying abreast of changes in technology. * 4-5.3: supervision of employees also means by using the cloud, you are taking on a third-party you must supervise.

* Ask your provider LOTS of questions * Consider using encryption software * Consider cloud companies that frequently work with lawyers * Keep paper records around and an electronic back up

* Well, lets talk about that. * In-house IT professionals * Different services * Back ups on back ups * Handout Stay savvy! https://www.youtube.com/watch?v=9ntPxdWAWq8 https://www.youtube.com/watch?v=9ntPxdWAWq8