Small and solo in the cloud
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Transcript of Small and solo in the cloud
SOLE, SMALL FIRM AND GENERAL PRACTICE
Hot Topics for Sole and Small Firms
Date: Thursday, February 5, 2015 | 7:45 am to 8:45 am
Westin Harbour Castle Conference Centre
2 Harbour Square | Toronto, ON
Confidentiality (Rule 3.3)
• “strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship...” [Emphasis added].
• Rule 3.3-1(a): disclosure may occur with the express or implied consent of the client
How is this Duty to Clients Met?
• Educating yourself about the real risks of cloud computing
• Informing your client of your use of technology• Put it in the retainer agreement
• Make reasonable inquiries of your cloud services provider• What is reasonable?
Should Lawyers Use Electronic Document Systems?• LSUC’s “Technology Practice Management
Guideline” (amended October 2014)• 5.3.2 Lawyers should consider Electronic Document
Management Systems or Services• 5.11 Lawyers should have back-up and disaster recovery
plans for information technologies[emphasis added]
• Question: Does it matter where these files are backed up (jurisdictionally)? Should this play a role in the document management system you consider?
PATRIOT Act Fears
• erroneous to assume that powers are more extensive or far-sweeping than other jurisdictions• Study of laws of Australia, Canada, Denmark, France,
Germany, Ireland, Japan, Spain, United Kingdom illustrate they all have similar powers
• companies that conduct business inside U.S. can still be compelled to provide information hosted off-shore
• concerns probably overblown
Technology Practice Tips: Cloud Computing (Transcript)• Phil Brown: …So, the first question, I guess, would be
what is cloud computing? …And would that include e-mail and other things like that?
• David Whelan: Absolutely. And I think people probably don't realise that they're using the cloud already when they are using Google Mail or they're using Hotmail. But that really is the same sort of thing, where before they might have had the e-mail system on their computer and the e-mail would download, now they access it through a web browser.
• Available at: http://www.lsuc.on.ca/For-Paralegals/Manage-Your-Practice/Confidentiality/Technology-Practice-Tips---Cloud-Computing-(Transcript)/
Explanations of Rule 3.3
• Commentary 9 to this Rule:• lawyers are required to continue “to take reasonable
care to prevent their disclosing or using any information that the lawyer is bound to keep in confidence.” • Duty is ongoing, so lawyers should continue to educate
themselves
• some inferred disclosures to independent third-parties “whose services are used by the lawyer,” but only “to the extent necessary.”• What is “necessary?”
• Is it necessary to be competent/effective
Rule 3.1-1 (Competence)
• Rule 3.1-1 (d),(e): competence includes communicating and performing in a timely and effective manner
• Comment 12: effective communications tied to conscientiousness, diligence, and efficiency.
• Quality legal service under Rule 3.2-1 is also tied to timely communications with clients
Rule 3.1-1 (Competence)
• Competence is further defined under Rule 3.1-1(i) to include managing an office effectively.
• competence can and will change over time• Rule 3.1-1(k) “adapting to changing professional
requirements, standards, techniques, and practices.” • Comment 15: perfection is not in fact required, but
rather a degree of reasonableness
• Rule 3.1-1(j): obtain the appropriate training and professional development required to build on their skills• Including how a lawyer’s records are managed
Could Cloud Computing be Authorized Already in Ontario?
• New Rules of Civil Procedure, Jan. 1, 2015• R 16.01 (4) (b)(iii) use of an electronic document
exchange
• R 16.09 (4.1) Service of document proved by electronic document exchange (replaces Affidavit of Service)
• CourtsideEDX is currently the only provider
Is Cloud Computing Required for Competence?
• If cloud computing makes you a better lawyer, are you not required to adopt it (or at least make reasonable inquiries)
Tools for the Reasonable and Diligent Practitioner• Law Society of British Columbia cloud computing
checklist (2012)• Large cloud-based legal software companies already
operating in Canada should be in compliance with this list• Confirmation, for example, from Clio (founded in Canada)
• Lawfactory PRO (stored in Canada) – except safe harbour
• LawPRO’s new cybercrimes coverage• $250,000 limited coverage
The Real Risk with Cloud Computing…• …probably has nothing to do with the cloud at all.
• new Rule 48.14 (Dismissal of an Action for Delay)• automatic dismissals will occur without notice to the
parties or their lawyers
Conclusions
• Adoption of e-service may implicitly approve use of cloud services, at least for court documents
• Unjustified concern over client confidentiality could stifle innovation, customer service, and even professional competence
• Reasonable due diligence over cloud tools can be conducted with existing resources