Model Disclosure Effective for Obtaining CA Client's Informed Consent to use of Cloud Computing

Posted about 2 years ago. Applies to California, 1 helpful vote

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A comprehensive statement of the nature of unbundled legal services delivered through the use of cloud computing technology that is sufficient to obtain the informed consent of potential clients to the use of such cloud computing technology under all applicable California ethics authority and guidelines is here:

An attorney offering limited scope representation to a client identifies the separate legal tasks associated with an entire legal matter and then provides representation to the client regarding specified parts of the client's case only. Because the attorney breaks the entire representation down and performs only one or two aspects of it, these kinds of legal services are known as "unbundled legal services." An attorney typically virtually delivers these unbundled legal services to the client through the Internet using the secure computer servers of a third-party vendor, usually a large, sophisticated data center. This practice of using software (sometimes known as “software as a service") to transmit and store data over the web is known as "cloud computing." Limited scope representation (a.k.a. discrete task representation) differs significantly from the legal representation clients receive from more traditional "brick and mortar" law firms, both in terms of the nature of the legal service being provided as well as how it is typically provided, i.e. online.

Attorneys in traditional firms often times utilize some or many aspects of the same type of cloud computing technology that Virtual Law Office (“VLO") practitioners use. The California Business and Professions Code and the California Rules of Professional Conduct do not impose greater or different duties upon a VLO practitioner than they do upon a traditional non-VLO practitioner as it pertains to the use of technology. Nevertheless, an attorney in California has a duty to preserve the confidentiality of client information, data, and files. In any case, this duty of confidentiality, common to all attorneys, would require that I exercise reasonable due diligence both in the selection, and then in the continued use, of any technology the firm ultimately selects for its operations.

However, because the firm is a primarily virtual firm and utilizes cloud-computing technology that stores client data on a third-party server, I am acutely aware of my duty to preserve client confidentiality as required by Rule 3-100 of the California Rules of Professional Conduct. Thus, I have made sure to exercise particularly heightened care in my investigation of the security of the cloud computing technology the firm has chosen to use for its practice management requirements. In this regard, I have not only familiarized myself with the nature of the technology the firm will use to provide legal services to its clients as well as the protections it provides with regards to data security, but I have also extensively investigated the security features of that technology and am convinced that I will be able to meet both the duty of confidentiality and the duty of competence I owe to my clients while at the same time utilizing first-in-class cloud computing systems.

Among other topics, I have extensively investigated the credentials, data security, third-party servers, data back-up practices, and terms of service of the firm’s cloud computing vendors to ensure that they not only preserve client data and the confidentiality of that data, but also that they are consistent with, or exceed, industry standards for data security. I have conducted a separate independent investigation of the data security of the third-party data center utilized by the firm’s cloud computing vendors. I have also ensured that the policies of these vendors allow me to adequately supervise their operation as well as their handling of client data. If I choose to discontinue service with one of these vendors, I have made sure that the terms and conditions of the vendor allow me to export and take with me to a new vendor all of the firm’s client information and to delete client data from the system of the vendor with whom I discontinued service.

Because the firm utilizes cloud computing technology and is a primarily virtual law firm in which I will not meet face to face with the firm’s clients in the majority of instances, and in an abundance of caution, the firm provides this information and full disclosure regarding the nature of the legal services being offered by the firm not only here on this website, but also in this website’s Terms and Conditions of Use, which every client must accept during the client registration process located here. Much of this information is also included in the Limited Legal Services Retainer Agreement. We are providing this information to ensure that you are fully informed of the specific nature of the legal services being offered by the firm on this website so that you are in a position to give your informed consent to our use of cloud computing technology in the delivery of legal services to your business.

If you wish to purchase legal services from the Law Office of Jacob I. Kiani, we must receive in our office an executed Limited Legal Services Retainer Agreement before we begin any legal work on your matter. I will upload the Retainer Agreement to the documents section of your secure client portal after you have registered and accepted the Terms and Conditions of Use for this website, which you will be prompted to do during the registration process for your secure cloud based client portal. Once you have executed it, you may conveniently upload a revised version of the Retainer Agreement, and I will sign into the cloud based computing system and retrieve it there.

The firm is providing you with this information to obtain your informedconsent to our representation of you on an unbundled, limited scope basis, as well as your informedconsent to the nature of how the legal services being offered on this website will be delivered to you, i.e. online over the "cloud" as more fully described above, in the “How It Works" Section of this website, in this website’s Terms and Conditions of Use, and in the Limited Legal Services Retainer Agreement, which you will be required to execute before any representation of you by the Law Office of Jacob I. Kiani commences. The “cloud" is encrypted and is a secure method of communication given that the third-party data center is itself secure. In fact, it is the same type of computing used in online applications such as online consumer banking, Facebook, PayPal, Twitter, ebay, programs such as Dropbox and Evernote, and many other “software as a service" applications that utilize the cloud with encryption technology. However, please take notice that the firm does not communicate with its clients on a completely "closed" network. For example, some larger law firms store and transmit client data and files via a Virtual Private Network (“VPN"), which is more secure than the cloud because it is a smaller, closed network. Only the computers with access to the VPN (all of which are within the company) use that network. In other words, a VPN does not utilize a third-party data center, while cloud computing does.

A consumer of unbundled legal services must also understand before choosing to proceed with this service that there will be a certain amount of non-legal work that the client agrees ahead of time to do on his or her own, even within the specific legal task the firm has agreed to provide to you. For example, if the firm has agreed to prepare a new Employee Handbook for your business, the firm will request that you fill out a questionnaire on your own as there will be certain information about your business (i.e., how many employees you have, how many locations you have, etc.) that the firm will require for purposes of tailoring the Employee Handbook to the specific needs of your business and to the applicable requirements of California law. The firm also reiterates here that the very nature of the unbundled legal services available on this website are that the firm will not serve as your attorney of record in any case. You understand and agree that we are not consenting to act as your attorney of record in any matter by virtue of entering into the Limited Legal Services Retainer Agreement, which provides for the provision of discrete task representation only.

In a typical employment case, for example, the firm may be retained to perform the sole legal task of drafting a pre-litigation demand letter to an employer on behalf of an employee. The firm informs the employee before the commencement of any representation of the employee by the firm that the firm has not agreed to, and will not, represent the employee if he/she ultimately decides to file a complaint against his or her former employer.

Pursuant to Rule 3-110 of the California Rules of Professional Conduct, the firm owes a duty of competence to each of its clients. The duty of competence requires not only that the firm preserve the confidentiality of its client’s data and files, but also that the firm is able to competently perform, within the confines of a virtual law office environment, all aspects of the specific legal services it has agreed to provide a client. To that end, if at any point during the firm’s representation of a client, the firm reaches the conclusion that it cannot competently provide, within a virtual law office environment, the representation that the client requires, the firm will immediately inform the client of this fact and will provide the client with either a referral, or resources for a referral, to a more traditional law firm with the ability to competently provide the representation required by the client.

Additional Resources

http://www.laborandemploymentlawoffice.com http://www.laborandemploymentlawoffice.com/LALaborLawBlog http://www.calbar.ca.gov/Portals/0/documents/publicComment/2012/2012_PublicComment_COPRAC-Opinion-Int-10-0003-VLO.pdf http://ethics.calbar.ca.gov/LinkClick.aspx?fileticket=wmqECiHp7h4%3d&tabid=837 http://t.co/Z2tOBVpr

Law Office of Jacob I. Kiani

Law Office of Jacob I. Kiani LA Labor Law Blog

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