I recently began guest blogging at the Firmex Online Document and Collaboration blog. My posts appear every Tuesday. If you’re interested in cloud computing and other technology issues for lawyers you may enjoy these posts.
Here are some of my most recent posts:
“People … especially people in positions of power … have invested a tremendous amount of effort and time to get where they are. They really don’t want to hear that we’re on the wrong path, that we’ve got to shift gears and start thinking differently.”
— DAVID SUZUKI
I am a staunch proponent of cloud computing and strongly believe it is the future of computing for the legal profession.
Granted, legal cloud computing platforms and services present a number of thorny ethical and security issues, but legal cloud computing providers are very responsive and receptive to the very valid concerns raised by lawyers in that regard.
In its current form, cloud computing for lawyers is not perfect, but it’s a viable alternative to traditional desktop software for many lawyers, especially solos and small firms. As the technology and products improve, the technology will become a more palatable alternative for large and small firms alike.
Of course, that’s just my opinion — and it’s one that I express often. When I do so, I am generally met with skepticism from most lawyers — a reaction I’ve become quite used to.
When I discuss my vision of cloud computing in the legal field with legal IT personnel, however, the reaction I generally encounter is one that can only be described as downright hostility.
At first, I was puzzled by the phenomenon. Now realize it’s simply a matter of self-preservation for those folks.
They’re wary of emerging cloud computing technologies because of a very real and vested interest in clinging to the status quo, since the mass adoption of cloud computing by law firms threatens the existence of their job functions as they now exist.
As Nicholas Carr explains in “The Big Switch,” the future of in-house IT personnel is questionable as businesses transition to using cloud computing platforms and storing their data in the cloud:
In the long run, the IT department is unlikely to survive, at least not in its familiar form. It will have little left to do once the bulk of business com- puting shifts out of private data centers and into ‘the cloud.’ Business units and even individual employees will be able to control the processing of information directly without the need for legions of technical specialists.
The gradual shift toward cloud computing does not mean IT professionals will be out of work. Rather, it simply means they must be flexible, open minded and willing to adapt to the changing IT landscape. IT jobs are not disappearing, they are merely changing.
For example, while demands for in-house IT personnel continue to decline, demand for virtualization pros skilled in cloud computing has increased by 21 percent from last year, according to recent studies analyzing job hiring data and classified ads.
The bottom line is that the future is not bleak for in-house legal IT personnel — it’s simply different. Cloud computing represents change on a grand scale and while the mass adoption of cloud computing platforms threatens the jobs of some IT staff, it will likely transform the jobs of others and promises to alter the internal structure of law firms.
No doubt, change and uncertainty can be scary, but desperately clinging to the status quo out of fear does a disservice to both the legal and IT professions and, ultimately, will fail.
A better alternative is to embrace change and find new opportunities in the emerging legal technology landscape.
This screencast features, and is sponsored by, the following legal technology products:
- Firmex—provides secure, virtual data rooms, which
can be used in a legal corporate environment to manage online due diligence,
exchange closing drafts, create digital record books, share litigation
documents and secure client access to important files.
- Mavenlink–provides an online collaborative workspace that allows lawyers to manage a client's case from start to finish, including uploading and collaborating on documents with clients and communicating with clients about their case in a secure, easily viewable environment.
In this episode of lawtechTalk, like the last episode, I'm experimenting with a new format. During each screencast and demo, I'll be interviewing a representative
from each company. Hopefully this interactivity will make the
screencast even more interesting for you, the viewer.
There are 3 parts to this episode, which you can access by scrolling through and clicking on each segment below:Read Full Post | Make a Comment ( Comments Off on Watch the latest lawtechTalk episode for free! )
This week’s Daily Record column is entitled “Is cloud computing really less secure than the status quo?”
Is cloud computing really less secure than the status quo?Cloud computing, defined at Webopedia.com as the “sharing [of] computing resources rather than having local servers or personal devices to handle applications,” is a buzzword that has many lawyers up in arms.
Examples of cloud computing used by many lawyers and their clients on a regular basis include Gmail and other Web-based e-mail services. Many platforms and services available to attorneys for use in their law practice that are cloud computing-based include practice management and document management software.
Cloud computing critics decry the trend of using cloud computing services in law practices. One of the main criticisms is that cloud computing may result in the loss or disclosure of confidential client data. Such concerns certainly are valid, and most certainly there are a number of issues that need to be addressed.
I would argue the security risks posed by cloud computing platforms are far less than the systems currently in place in most U.S. law offices. If the majority of law offices began using cloud computing services in their practice, client data would be far more secure than it is now.
Despite coverage in the mainstream media suggesting otherwise, the vast majority of lawyers are solo practitioners. According to a 2006 report issued by the New York State Commission to Examine Solo and Small Firm Practice, more than 83 percent of New York attorneys are solo practitioners; 14.7 percent work in offices of between two and nine attorneys, and only 1.8 percent of attorneys work in large firms with 10 or more attorneys (See http://www.nycourts.gov/ip/solosmallfirmpractice/index.shtml.)
In other words, nearly 95 percent of New York lawyers work in very small law offices. The vast majority of those small firms don’t have IT support on staff, and most lawyers in those firms don’t know the first thing about computers.
Undoubtedly those attorneys continue to use systems and software from the late 1990s —at least, that’s the case in many law offices I’ve visited. Their anti-virus software is antiquated and their practice management software, if they even have it, has never been updated because most attorneys are too busy practicing law to bother with that “computer stuff.” Many don’t understand the importance of updating software and the security issues created when security patches are not installed.
For the vast majority lawyers, as long as their computers are basically functional, it’s business as usual because, as we all know, if it ain’t broke, don’t fix it.
I would argue these law offices —like the vast majority throughout the country —are walking security hazards. Anyone with minimal computer skills and a passing interest in hacking into a law office’s computer system could do so in a heartbeat.
Cloud computing providers are newcomers to the legal software market. Their products aren’t perfect, but they are responding quickly to concerns raised regarding security and other issues. The cloud computing providers that offer software services host the software and data at extremely secure facilities with high levels of bank-grade encryption and update their programs automatically. The attorneys using the services no longer need to worry about these issues and are, in my opinion, in far better shape security-wise than they were before they began using cloud computing services.
Discounting the technologies by using scare tactics and rhetoric is short-sighted and harms the profession in the long run. Cloud computing technology providers are receptive to feedback and continuously adapt their products to meet critics’ legitimate concerns. While the technologies may not be perfect, they are improving rapidly and are a much better alternative to the current computing status quo at most law offices.
This week’s Daily Record column is entitled “Does cloud computing compromise clients?”
Does cloud computing compromise clients?
I predict that within about two to three years, lawyers in most jurisdictions will communicate and collaborate with clients using some type of an encrypted network.
A number of states, including Massachusetts and Nevada, already have passed laws or regulations requiring certain types of confidential data to be sent electronically only via encrypted communications. More laws of that nature most certainly will follow, both at the state and federal level.
In my opinion, such laws —most of which apply primarily to financial institutions —ultimately will incorporate some of the types of client information contained in attorney-client communications, in large part because of rising concerns due to recent large-scale data disclosures.
In fact, that type of data breach is one of the primary reservations expressed by lawyers when considering whether to implement cloud computing platforms in their law practice.
A recent federal court decision fanned the fire, causing many attorneys to decry the use of cloud computing and assert that doing so violated the very basic obligation to protect confidential client communications and data.
In a decision issued last week by the U.S. District Court for District of Oregon, in In re U.S., Nos. 08-9131-MC, 08-9147- MC, the government argued successfully that it need not notify the account holder regarding a warrant served on the ISP holder of the e-mail account. In reaching its decision, the court gave lip service to the concept that e-mails are entitled to Fourth Amendment protections, but then stated:
Much of the reluctance to apply traditional notions of third-party disclosure to the e-mail context seems to stem from a fundamental misunderstanding of the lack of privacy we all have in our e-mails. Some people seem to think that they are as private as letters, phone calls, or journal entries. The blunt fact is, they are not.
In comparison, however, see footnote 7 from the October Memorandum and Order issued by the U.S. District Court, Eastern District of New York, inU.S. v. Cioffi:
One preliminary matter is not in question: The government does not dispute that Tannin has a reasonable expectation of privacy in the contents of his personal e-mail account.” See U.S. v. Zavala, 541 F3d 562,577 (Fifth Circuit 2008) (‘[C]ell phones contain a wealth of private information, including emails, text messages, call histories, address books, and subscriber numbers. [The defendant] had a reasonable expectation of privacy regarding this information.’); U.S. v. Forrester, 512 F3d 500, 511 (Ninth Circuit 2008) (‘E-mail, like physical mail, has an outside address ‘visible’ to the third-party carriers that transmit it to its intended location, and also a package of content that the sender presumes will be read only by the intended recipient. The privacy interests in these two forms of communication are identical. The contents may deserve Fourth Amendment protection, but the address and size of the package do not.’).
Accordingly, despite the fact the dicta in the Oregon decision flies in the face of binding precedent, online commentators repeatedly raised concerns regarding the decision, asserting it was further evidence that the use of cloud computing in law practices is ill-advised.
I would assert to the contrary the Oregon dicta is further evidence that the incorporation of encrypted client communications in cloud computing may well be the primary factor that convinces attorneys to accept cloud computing services as a legitimate law practice management alternative to traditional software packages.
A number of well-established cloud computing providers already incorporate encrypted communications in their platforms. For example, VLOTech, Clio and NetDocuments allow for varying types of encrypted communication with clients. Another online legal platform, NKrypt, is devoted to providing a secure, encrypted e-mail network.
Cloud computing providers are adapting quickly to and responding to the concerns raised by lawyers. As a result, lawyers are becoming increasingly comfortable with the concept of cloud computing. In fact, according to the 2009 Am Law Tech Survey, 84 percent of responding law firms already use SaaS (Software as a Service), a form of cloud computing, in some capacity.
As cloud computing becomes more prevalent in the legal field, more lawyers will understand the importance of carefully negotiating their contracts with the services providers to ensure that, for example, they are notified if a warrant relating to their data is served.
Mark my words: Cloud computing is the wave of the future, and encrypted communication is one of the keys to putting attorney’s minds at ease regarding an emerging technology. Astute providers will incorporate encrypted communication into their platforms, and smart lawyers will learn about and use the emerging technology in their practice.