e-Discovery California: Proposed Formal Opinion Interim No. 10-0003 (VLO) is the Right Answer to the Wrong Question

http://ow.ly/8lk2l

An article by Perry L. Segal posted on the e-Discovery Insights blog.

This article discusses a California State Bar formal opinion, (formal opinion No. 10-0003 (Virtual Law Office)) a link to the proposal is provided in the article.

The opinion provides guidelines for California attorneys regarding the proper way to function as a Virtual Law Office.  However, the author points out some artificial restrictions that are inherent in the opinion, and indicates that there are some unrealistic expectations within the formal opinion.

The article states, "Section 1 examines confidentiality issues of employing a cloud-based system with a 3rd-party vendor and provides a five-point list of due diligence factors that includes, but isn't necessarily limited to:

1. The Credentials of the Vendor
2. Data Security (Well, that's not very helpful, but it goes on to refer the reader to California, New York and ABA opinions for guidance)
3. Vendor's Transmission of Client Info in the Cloud Across Jurisdictional Boundaries or Other 3rd-Party Servers (You've heard - or read, I suppose - me pontificate on that one; the "digital roach motel" and "know where your data is")
4. Attorney's Ability to Supervise the Vendor (As I've reminded you often, you mayhire competence, but not delegate this duty)
5. Terms of Service of Contract with the Vendor (This is huge where the cloud is concerned. For example, many provider contracts contain language to the effect that, "Once you transfer it to us, it becomes our property.", a major no-no for attorneys)

The article further states:"Section 2 examines competence issues as follows:

1. Proper management of attorney's intake system to determine one of the basics; "Who is the client?"
2. Determining whether attorney may perform the requested services
3. Determining that the client comprehends the services being performed (This document also refers to comprehension issues due to a language barrier)
4. Keeping the client reasonably informed
5. Determining that the client understands technology (When I read #3 above, it immediately triggered the thought that technology is another language both attorney and client must understand...)
6. Determining when to decline to represent a client via a VLO, and whether representation may continue through traditional means."

The article offers the following commentary, "The hypothetical describes the VLO as a password-protected and encrypted portal that sits on a 3rd-party cloud. So far, so good. But then, it goes on to say that the attorney plans not to communicate with clients by phone, email or in person, but will limit communication solely to the portal.

Yeah, that covers a lot of us, doesn't it?

I understand that it's possible for attorneys to communicate this way, but is it probable? Does this opinion realistically apply to most attorneys; now and even into the future?"

The article goes on to discuss elements of the security requirement, and why the opinion is not necessarily practical in that regard.  In addition, the article discusses social media networks, and emails, and states that they are already "cloud" based, and questions how communications in those forms would fit into the scheme referenced in the formal opinion.