Response to Commission on Ethics 20/20 Proposals

Natalia Vera
ABA Center for Professional Responsibility
321 North Clark Street
15th Floor
Chicago, IL 60654-7598

RE: Client Confidentiality and Lawyers’ Use of Technology

To whom it may concern,

On May 2, 2011, the ABA Commission on Ethics 20/20 (“Commission”) released its Initial Draft Proposals on “Technology and Confidentiality” (“Proposals”). The Proposals include certain modifications to the ABA Model Rules of Professional Conduct that are designed to facilitate the responsible adoption of technology that will increase the quality, and reduce the cost, of legal services.

The Legal Cloud Computing Association (“LCCA”), formed in December 2010, is the collective voice of the leading cloud computing software providers for the legal profession. Consisting of Clio (Themis Solutions, Inc.), DiaLawg, LLC, DirectLaw, Inc., NetDocuments, Nextpoint, RealPractice, Inc., Rocket Matter, LLC, and Total Attorneys, LLC, the LCCA strongly supports the Commission’s efforts to provide clarity to the legal profession with respect to the ethical implications raised by the use of technology available via the internet, such as cloud computing. The LCCA first submitted written comments to the Commission on December 15, 2010 in response to the Commission’s September 10, 2010 call for comments on Client Confidentiality and the Use of Technology.

Conclusion

The Legal Cloud Computing Association (“LCCA”) thanks the Committee for considering its submission, supports the Proposals, and respectfully recommends their adoption.

Commentary

As software professionals, we recognize that technology continually offers opportunities for improvement to all aspects of society, including with respect to the practice of law. Though cloud computing was specifically considered in the Commission’s analysis (and is the foundation of our association’s collective expertise), as technologists we recognize that cloud computing is just a single type of technology that will help dramatically improve the delivery of legal services.

Not long ago, fax machines, online record databases, electronic filings – even e-mail – were all brand new and revolutionary to the profession, yet today it’s difficult to even imagine lawyers practicing without these tools. Cloud computing will soon share that distinction, along with other yet-to-be-developed technologies that will improve the lives of both lawyers and the clients they serve.

Given the rapid pace of technological evolution, attempting to specifically regulate the use of any particular form or use (like cloud computing) is a Sisyphean task. At best, such an approach would be highly impractical.

At the same time, the legal profession clearly occupies a unique and distinct position in our society, and its adoption of any form of technology must be always be viewed in light of the lawyer’s unique, heightened duties, including the fundamental notions of competence and confidentiality. Technology will evolve, but these obligations will always remain unchanged.

In making its Proposals, the Committee adopts a sound approach to this challenge. It prudently avoids recommending cumbersome, detailed, or case-specific rules that would quickly become obsolete. Instead, the Committee sets down flexible principles that impose reasonable, workable requirements on the attorney, while protecting the general public and the profession

As a practical matter, attorneys “on the ground” servicing clients are usually in the best position to evaluate the appropriateness of a particular technology in the actual circumstances at hand. The Proposals recognize this. The efforts to safeguard information must be reasonable, and the Committee suggests simple, practical factors to consider in making that determination.

In addition, the Proposals require lawyers to not only “keep abreast of changes in the law and its practice” but also to “include the benefits and risks associated with technology” in such process. This suggested requirement is both protective and, wisely, pro-active.

Ultimately, matching the exercise of reasonable professional judgment with the requirement to keep knowledgeable makes good sense and will provide a workable solution that can apply not only to cloud computing, but to other technology as it is released.

The LCCA shares the goal of ensuring that lawyers can benefit from technology advances while also protecting the profession’s high standards of integrity, confidentiality, and competency. Further, the LCCA and its members will endeavor to not only provide excellent software for lawyers, but also to continue to educate the profession to help promote the understanding of, and ideally proficiency with, cloud computing.

We strongly encourage continued, frequent communication among the ABA, the State Bars, all of their respective members, and the LCCA to help facilitate the responsible adoption of cloud computing, to the direct benefit of the profession and the general public at large.

Respectfully submitted,

The Legal Cloud Computing Association

Jack Newton, Co-founder and Chief Executive Officer, Clio (Themis Solutions Inc.)

Jeff Goens, Co-founder, President & General Counsel, Dialawg, LLC

Richard Granat, Founder and Chief Executive Officer, DirectLaw Inc.

Leonard Johnson, VP Marketing, NetDocuments

Rakesh Madhava, Chief Executive Officer, Nextpoint, Inc.

Carey Ransom, Chief Executive Officer, RealPractice, Inc.

Larry Port, Founding Partner and Chief Software Architect, Rocket Matter LLC

David Dahl, Chief Technology Officer, Total Attorneys, LLC