PLEASE NOTE:  Publication for public comment is not, and shall not, be construed as a recommendation or approval by the Board of Trustees of the materials published

SUBJECT:

Proposed Formal Opinion Interim No. 10-0003 (Virtual Law Office).

BACKGROUND:

The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct.  In accordance with Tab 19, Article 2, Section 6(g) of the State Bar Board Book the Committee shall publish proposed formal opinions for a public comment period of no less than 60 days.

DISCUSSION/PROPOSAL:

Proposed Formal Opinion Interim No. 10‑0003 considers: May an attorney maintain a virtual law office practice (“VLO”) and still comply with her ethical obligations, if the communications with the client, and storage of and access to all information about the client’s matter, are all conducted solely through the internet using the secure computer servers of a third-party vendor (i.e., “cloud computing”).

The opinion interprets rules 1-100, 1-300, 1-310, 3-100, 3-110, 3-310, 3-400, 3-500, 3-700 and 4-200 of the Rules of Professional Conduct of the State Bar of California, Business and Professions Code sections 6068(e), (m) and (n), 6125, 6126, 6127, 6147 and 6148, and California Rules of Court 3.35-3.37 and 5.70-5.71.

The opinion digest states: As it pertains to the use of technology, the Business and Professions Code and the Rules of Professional Conduct do not impose greater or different duties upon a VLO practitioner operating in the cloud than they do upon an attorney practicing in a traditional law office.  While an attorney may maintain a VLO in the cloud where communications with the client, and storage of and access to all information about the client’s matter, are conducted solely via the internet using a third-party’s secure servers, Attorney may be required to take additional steps to confirm that she is fulfilling her ethical obligations due to unique issues raised by the hypothetical VLO and its operation. Failure of Attorney to comply with all ethical obligations relevant to these issues will preclude the operation of a VLO in the cloud as described herein.

At its November 5, 2011 meeting and in accordance with its Rules of Procedure (State Bar Board Book Tab 19, Art. 2, Sec. 6(g)), the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 10‑0003 for a 90‑day public comment distribution.

ANY KNOWN FISCAL/PERSONNEL IMPACT:

None

ATTACHMENT:

Proposed Formal Opinion Interim No. 10-0003

SOURCE:

State Bar Standing Committee on Professional Responsibility and Conduct

DEADLINE:

March 23, 2012

DIRECT COMMENTS TO:

Angela Marlaud
Office of Professional Competence, Planning and Development
State Bar of California
180 Howard Street
San Francisco, CA 94105-1639
Ph. (415) 538-2116
Fax (415) 538-2171
E-mail: angela.marlaud@calbar.ca.gov