The Cloudy Ethics of Cloud Computing

Episode Notes

Transcript

The Digital Edge

The Cloudy Ethics of Cloud Computing

08/29/2018

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Intro: Welcome to The Digital Edge with Sharon Nelson and Jim Calloway, your hosts, both legal technologists, authors and lecturers, invite industry professionals to discuss a new topic related to lawyers and technology. You are listening to Legal Talk Network.

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Sharon D. Nelson: Welcome to the 128th edition of The Digital Edge: Lawyers and Technology. We are glad to have you with us.

I am Sharon Nelson, President of Sensei Enterprises, an information technology, cybersecurity and digital forensics firm in Fairfax, Virginia.

Jim Calloway: And I am Jim Calloway, Director of The Oklahoma Bar Association’s Management Assistance Program. Today our topic is, The Cloudy Ethics of Cloud Computing

Sharon D. Nelson: And before we get started we’d like to thank our sponsors.

Thanks to our sponsor Clio. Clio’s cloud-based practice management software makes it easy to manage your law firm from intake to invoice. Try it for free at clio.com. That’s clio.com.

We’d like to thank Answer1, a leading virtual receptionist and answering services provider for lawyers. You can find out more by giving them a call at 800 Answer 1 or online at answer1.com.

Jim Calloway: Scorpion sets the standard for law firm online marketing with proven campaign strategies to get attorneys better cases from the Internet. Partner with Scorpion to get an award-winning website and ROI positive marketing programs today. Visit scorpionlegal.com/podcast.

Thanks to ServeNow, a nationwide network of trusted prescreened process servers. Work with the most professional process servers who have experience with high volume serves, embrace technology, and understand the litigation process. Visit serve-now.com to learn more.

We are pleased to have as our guest, Lucian Pera, who is a partner in Adams and Reese LLP. A graduate of Princeton University and Vanderbilt University School of Law, he was a member of the ABA Ethics 2000 Commission which rewrote the ABA Model Rules of Professional Conduct. He has Chaired the Editorial Board of ABA/BNA Lawyers’ Manual on Professional Conduct and served as President of the Association of Professional Responsibility Lawyers. He is a past treasurer of the ABA, an immediate past President of the Tennessee Bar Association. Thanks for joining us today, Lucian.

Lucian Pera: Well, thanks for having me on Jim and Sharon. I’ve been a fan of you all for a long time.

Sharon D. Nelson: Well, we’ve been fans of yours too, so it’s great. We’re all in the clubhouse together now. But before we get into our topic, Lucian, I’m kind of curious. You are a lawyer of a certain age like me, you were around before PCs, which makes us practically fossilized creatures.

Lucian Pera: Indeed.

Sharon D. Nelson: How did you learn to use a computer and what was your first computer?

Lucian Pera: Oh my God. That was a long time ago. First computer probably at this High School I went to in Memphis where — for two years running we had big fundraisers and raised money, and God, if I’m not mistaken, a digital electronics company PDP-11 which was the size of a tall filing cabinet which would basically run tractor feed green bar paper and do fun stuff like that, and I spent many an hour in a local closet that had that. But the first PC was a Toshiba T1200 laptop which weighed about, probably about 14 pounds, and this will tell you the age of the technology. This was in the 80s. It was a non-backlit screen on my laptop. Non-backlit, which means if the lights went out you couldn’t see anything. How’s that felt. And my wife, by the way, everything I know about computers I learned from my wife. She is a CPA, so she knew all about this stuff.

Sharon D. Nelson: You got to love a man who gives credit to his wife.

Jim Calloway: There you go.

Lucian Pera: Words do, man. Words do.

Jim Calloway: Lucian, we all know that the ethics rules have attempted to address technology issues with new and modified rules and ethics opinions. How well has that worked and where hasn’t it worked?

Lucian Pera: Well, that’s a big question. There was a time, I’m old enough also to remember how the ethics rules have coped with technology in this sense. So, for example, I remember back in the 90’s, but I feel like I need to tell somebody to get off of my lawn. But, in any event, back in the 90’s when email was young we struggled with whether we could use email and it went from the first Internet email I remember my firm using, which was not a terribly early adopter, but an early adopter, it was about 94 or 95, that was Internet email. It wasn’t until 1999 that we got settled in ethics opinions whether we could use what was then called Unencrypted Internet Email for client work, and then that was considered settled. So that was a long time.

(00:05:07)

More recently I think ethics opinions and rules have been better about it, but it’s a struggle, I mean, lawyers are late adopters and the ethics people traditionally have been even later adopters. So, it’s been a struggle, but I think more recently things have caught up. I mean, for example, the most recent example. There is an opinion out there from Nebraska on whether lawyers can use, can take Bitcoin as fees and most lawyers barely know what Bitcoin is these days, and it’s actually a pretty good opinion, seriously.

So, I think we’re getting better but some days it’s still a bit of a struggle for the ethics people to deal with technology.

Sharon D. Nelson: I think you are right about that and then Nebraska opinion which was certainly the first and was certainly pretty darn good. The one thing it did not address was the fees that are charged. What happens to fees that are charged for cryptocurrency? So, there’s still some room to be working on that stuff ethically, but I know, Lucian, whenever my partner, John and I, talk to lawyers about ethical competence and tell them that the ethics rules compelled them to be technologically competent; they all go a little green.

Lucian Pera: Yeah.

Sharon D. Nelson: So, how competent do lawyers have to really be and using technology and how do they get themselves to that point of competence?

Lucian Pera: You are just going for big questions today. Well, I really think the first question there how competent do lawyers have to be? I think that is maybe the most difficult question, and it’s taken me a while to find a way to articulate it and we’ve now embedded in the ethics rules in more than 30 jurisdictions, a duty to understand and be aware of and capable of using technology to the extent we need to use it to practice law. So, that’s now an ethical requirement, but what does that mean?

Well, my sense is, it’s almost like issue spotting. The best example I was talking to somebody about this the other day. The best example I can think of is a specialty area. I think of a specialty area that is on the edges of your practice, but you have to know about it. So you are a deal lawyer and you really have to be able to spot the outlines of a securities problem or a tax problem. If you’re not a tax-drenched sort of deal lawyer, you got to know; you’ve got to know if there’s a securities problem in the deal you are about to do, you don’t have to be able to solve it, but you’ve got to know who can solve it, of course, and you got to be able to spot it.

The other way I’ve tried to explain it to people myself, and I think I’ve heard you; one of you guys try this and that is, you shouldn’t be using a technology whether it’s the newest iPhone or it’s a new file sharing service. If you don’t understand enough about it, so that you can — well, this is a circular, but be confident using it. You got to know how to use it and you got to understand the basics of its security.

So, that’s where I come out. I come out thinking you’ve got to understand some parts of its function. You shouldn’t be using it if you can’t use it right and you also have to understand how to do it safely. The sort of second part of that to me is always, and this maybe is how do they get competent?

I think you got to learn some on your own, but I think you have to have — I keep calling them a tech guru. For many people, you guys are their tech gurus, but you got to have somebody who not only you may follow their columns or whatever but you’re going to have somebody on speed dial. I had a seminar last week. I said, okay, I want to know who in this room knows the name of and has his phone number on their phone right now of the person they are going to call at 10:30 tonight when something terrible happens to them technologically.

And, a handful, I mean, five people in a room of 175 raised their hands, there probably were more people than that, but you got to have somebody you can ask daily questions and you got to have somebody who can help you in an emergency, and that’s just like you got to have a tax lawyer down the hall if you are a deal lawyer who comes across tax issues once in a while.

Jim Calloway: Well, Lucian, I’m going to ask you my overall most frequent question I answered this several times a month down from several times a week, so I hope our answer is similar, but how do you advise lawyers on whether they should use the cloud, is it ethical? Is it safe?

Lucian Pera: Yeah, I mean, I still hear that too. I guess one kind of flippant answer is, how do you not use the cloud? Because, in this day and age I can’t — you probably could tell me, but there was a time when I think the defaults on an iPhone when you are setting it up fresh out of the box would essentially drive you to backing up your phone in the iCloud, right? I don’t know if that’s still true, but it is so easy to — even if you don’t want to, and for example, our firm has had a policy of trying to own all our servers for years and years, and then we realized at the point in time, well, wait a minute the ordinary good doobie user who’s opening up a new iPhone, he is sending all our data at Apple.

Anyways, so that’s sort of a flippant answer, but I think the true answer is, I don’t think there are many lawyers who are complex except like the two of you on this call, not me, who are really competent to judge the security and usability of most cloud providers, and so I think you’ve got to use as reference points others. So, if it’s a piece of software that many lawyers use and it is cloud-based, Clio comes to mind, NetDocuments comes to mind, very pervasively used by lawyers, that can give you some element of confidence.

(00:10:11)

But, frankly, beyond that, I think you’ve got to have help. I think you have to have that tech guru who comes by at least once a week in your office or works for your office.

The other piece of that by the way the thing that freaks me out most recently is, I think it was our tech guy, our firm’s tech guy, told us in a tech meeting maybe that one, anyways, somebody told me, the Office 365 fresh out of the box virtually, so to speak, which is cloud-based product, gives you all kinds of options on how to set it up that vary the level of security that you can obtain and that there was a survey done — I’m not going to get numbers right, but a survey done that if you simply take the defaults their own score where they will score your security is, I forget the numerical score, but it’s very low.

Sharon D. Nelson: It’s 27 —

Lucian Pera: Oh, you were the one to tell this, that’s right.

Sharon D. Nelson: Yeah, it was me. I recognized my voice. It was 27 out of a possible 450.

Lucian Pera: Well, you tell me if I got the right lesson from here and you say that. The lesson I got is if I’m doing that, thank god I am not or if one of my partner or somebody else is trying, or a lawyer is trying, then they need help, they need somebody to sit over their shoulder and say, okay, of these you toggle all these things this way to get the kind of security you need and gets you up to the 300 score or whatever it is. You tell me, but I don’t think you can depend on an ordinary lawyer to figure out how to do that on their own, I mean, do you?

Sharon D. Nelson: Well, not even an ordinary lawyer, but an ordinary IT person, what they understand is how to install it and how to configure it so you can use it, but that doesn’t mean securing it. So, it works, everything works, but is it secure? No. There is actually a whole another set of things that must be done to secure it and that’s where Microsoft itself has something called securescore.com that you can go to online, and that’s where you can see how Microsoft itself says you have to secure it.

Now, you don’t necessarily need to get all the way up to 450 especially if you’re a small firm because it might be too much, but you certainly can get a lot higher than 27.

Lucian Pera: But to me the moral of that story is get help generally and specifically in a tech area get a tech guru to help you. You just have to do that. I don’t see any other way to do it.

Jim Calloway: I will. I add to some lawyers who don’t consider themselves tech gurus that I still view something that is actually HIPAA compliant is a certain, a safe harbor if it is not just that they’re saying it is, but I think that’s one thing to look at.

Lucian Pera: Yeah. I think that’s right and certainly people in the — I mean, one thing we’re seeing constantly is in the financial services arena and I think the healthcare field is similar, they’ve got one statute, the financial service people have multiple. But client demands are raging out there and increasing dramatically and frankly complying with a client checklist, you sure as hell shouldn’t do that widely, but that’s one comfort you can take in being a little more secure.

Jim Calloway: Before we move on to our next segment, let’s take a quick commercial break.

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Sharon D. Nelson: Welcome back to The Digital Edge on the Legal Talk Network. Today our subject is The Cloudy Ethics of Cloud Computing, and our guest is Lucian Pera who is a partner in Adams and Reese LLP.

Solution, lawyers are so confused by choosing cloud providers, there are gazillions of them, they all speak an incomprehensible language, their agreements are incomprehensible and they all promise the world. So, how do they choose a cloud provider and vet the cloud providers?

Lucian Pera: Yeah, that’s a good question. I can’t get away from expert help on this, but let me start a different place, I mean, we’re a big firm and I’m on our tech committee and the process there frankly is not that different than a solo I think ought to use, which is much as interested, intrigued, fascinated as I am by the newest shiny object.

(00:15:10)

I try to resist that impulse and instead think, okay, what am I trying to do here? Am I trying to get a suite of Office — Word processing and such products like Office, like Microsoft Office, in which case, Office 365 is a really lovely solution for that.

Am I trying to get a billing system? Similar thing, there are tools out there, or backup, just plain old backup, or more precisely, there’s backup, but there’s also document management systems, what’s the problem you are looking for a tool or a solution for? And then in that arena, then we drill down to what are the options?

Like I mentioned a while ago, I mean, my firm has this aversion mostly to, not the cloud exactly, but to the cloud owned by somebody else, but for a solo, cloud options like Office 365 are really very attractive, and so once you settle on, well, do I want to do — I don’t even know what the competitors to Office 365, I guess Google has got a kind of Office suite and whatever. I mean, I would come up with the list and probably some lawyers can do that on their own, and that’s about the point where I would turn to the tech person and say, okay, I have got these options here that I am seeing, tell me what I am missing and then help me choose. I think it’s exceptionally difficult for lawyers to make those decisions on their own.

And the other piece, like I mentioned a little while ago, that I am real, I know how this sounds, but I still think it’s important is I think you want to stay with the herd mostly, certainly on anything really important like Office suites or document management. To be the first lawyer to adopt a document management system, just shoot me now. I mean, I don’t think any lawyer should do that frankly.

I mean, maybe the two of you guys probably could do that safely, but honestly, you want to be where lawyers have tread before. But to me, you can’t narrow the selection from — you can’t put everything on the table on your own usually, in my experience and you can’t narrow that selection and say, well, these guys are insecure and these guys are secure without some tech help. Again, I don’t know lawyers who can do that.

And so, that’s where — I mean, in a firm of any size where you have either a regular consultant, IT consultant you use, or you employ one, what I have found is that the best way it works is a constant dialogue between the lawyer, the non-expert in-charge of tech and the tech person, because the tech person, as smart as they are and as many years as they have worked in a law firm, they do not understand perfectly what the users need. On the other hand, the lawyers certainly don’t understand what the products are.

Anyway, I have gone on too long, but that’s again my take on it.

Sharon D. Nelson: I think, Lucian, that you are just explaining how invaluable Jim and I really are.

Lucian Pera: That’s right. Well, I have worked for my prior firm and this firm, I have been at various occasions, usually the primary — or often the primary contact with tech people and usually a contact, and one of my criteria, by the way, that’s a whole another discussion is how you pick one, my number one criteria is can they speak English? And number two is, can they speak lawyer? And they don’t necessarily need to speak lawyer, but they need to speak English. You can train them to speak lawyer.

Jim Calloway: English, lawyer and geek is our three languages, Lucian, it’s all good.

You mentioned in the discussion to cybersecurity that your firm about 200 lawyers has generally been of the view that you want to own all of your servers and host all of your data, is that because you don’t like the cloud?

Lucian Pera: No, by the way, my marketing department, there’s a little person sitting next to me and telling me, tell him it’s more like 280 lawyers, but in any event.

Anyway, but no, I joined the firm in 2006; I have been with two law firms and been with this one since 2006 and the firm had a very healthy kind of IT ecosystem at that point. And at that point — and frankly, I would be willing to bet you guys will agree with me, I don’t think we could rely on third-party providers of security.

My old firm had for a number of years NetDocuments, even then a pretty good program, and so that was really a cloud system, and we were confident that it was reasonably secure. But the general notion that in 2006 you could confidently share your data with somebody else and pay them and you would be okay, I don’t think that was true and we didn’t think it was true as a firm.

And so from that we derived the lesson that we can do the security better than other folks and we have got a better chance of doing that if we control the whole ecosystem. And so at some point not long after 2006, we rented, whatever, racks or space or whatever in a data center and gradually consolidated everything there. That’s out in Brentwood, Tennessee. We don’t own the data center, but we own everything in our space there.

More recently, in the last year or so we have started questioning whether that’s necessary. I mean, candidly there are some products now that we need to have in an environment that isn’t sort of where your data lives entirely on your own, but that was why we came to that point and that’s why we got to that point.

(00:19:57)

Sharon D. Nelson: Interesting that you should say that you are not in the cloud, because when you own your own equipment and you are in a data center, you are in fact in a cloud, it’s just that you are controlling your own equipment, and that’s a hybrid cloud solution, which is also something that we often recommend. And it’s interesting that your firm’s view is perhaps changing somewhat, although I am still a little confused, because since so much stuff is now browser-based, it doesn’t really matter where anything is because you are getting there through a browser.

So, maybe you can explain to me why they think there’s a problem. I mean, whether your equipment is in the data center or not, I don’t see what it is you couldn’t do that you could do if somebody else owns your equipment.

Lucian Pera: I think that’s right. My own take on this is I am gradually coming to the view that we have a wonderful IT staff, I mean, truly we do have a wonderful staff, but we — I think every year now, I am sure every year now, we have a testing of our systems both internally to make sure we have patched everything and all that good stuff and we have penetration testing. I think it’s now — no, I know it’s now required once a year by a number of our clients.

Every time we do those reports, we go over those reports there are lots and lots of things we have missed, even despite our IT staff, and it just — it has occurred to a number of us that what if that was done by, I don’t know, Amazon Web Services instead of us, would that be better or safer. And that’s just at the level of course at — that’s just sort of — I think that’s sort of a deeper level than if we got like, I don’t know, Summation and paid them to host it for us.

I don’t know, it’s just — it’s an open question for me. I certainly haven’t resolved it, and the firm still believes that we can do almost everything we want on our own private cloud.

Now, I will say by the way, one thing that sparked this discussion is some service, and I can’t remember who it is right now, where we couldn’t, where they did not offer an option to have you host it yourself, and so we had to come to terms with, well, do we really need this service or not, and the answer was we really did. And it was one of the first exceptions we had made to that policy. But I have increasingly come to think that maybe that’s not the be all and end all of security at all.

Jim Calloway: Lucian, when you are discussing the 200-plus lawyer firm, I of course want to remind our listeners that if you are in a very solo and small firm setting, you are probably better and safer to rely on third parties with expertise than you are on hoping that the local computer guy in your small town can do adequate security for lawyers. So I did want to throw that in, because I think there are different standards.

Lucian Pera: Yeah, and can I add something to that, the one thing sometimes these discussions miss is reliability is — I am not sure of the right term, but the notion that I can do for my clients what I need to do for my clients today and I am not going to have an — that system is not going to be down for an hour. No question in my mind that Office 365 configured promptly is better than somebody having all those products set up on local servers or local computer, there’s just no question.

And frankly, on a day-to-day basis that’s probably a bigger consideration than security, and certainly for small firms.

Jim Calloway: Well, we hear a lot in CLE and podcasts like these today, it’s about cybersecurity for lawyers and I guess that’s the real question, how dangerous is it really out there, how likely is it that any lawyer is going to have something bad happen to them from using technology such as cloud technology, and if something happens, is that lawyer likely to get sued or disciplined, many questions?

Lucian Pera: Yeah, that’s one of those complete imponderables, but I mean, I see enough bad things happening to lawyers that I don’t have any doubt in my mind, none in my mind whatsoever that the dangers that cybersecurity is aimed at are real.

I was in the session I mentioned, where I think I stole from you, your piece about 45 Microsoft Office 365, where 175 or so real estate lawyers at a seminar done annually by the title company they write for. And people before me, speaking before me included a lawyer who was describing apparently with deep knowledge about what was going on in that space, but in the residential real estate closing space, it is considered a very lucrative market for thieves. And the number he gave, and this had all kinds of credibility behind it, so I trust it, I don’t think it’s fake news, was that $170,000 an hour is being stolen by thieves using some combination of phishing and hacking and spear-phishing and all kinds of social engineering.

And that’s just ridiculous, that is just insane, and particularly since most of these lawyers are not big firms like mine, they are one, two, five, ten-lawyer shops. So there’s no question it’s real; the question is, what is the best thing you can do to protect yourself.

Now, the other question you said about being sued or being disciplined, I think the much more real problem is having a financial loss, but can you be sued? Sure. Are there many of those lawsuits? No. About a year ago I think — well, we were the very large carrier and the number, and of course were large firms, all of them were large firms, the number of actual claims they had that were tied to cybersecurity, I can’t remember the number, but it was single digits.

(00:25:09)

So, probably the chance to being sued are low, but I don’t think that’s the big problem being disciplined after a breach, you know, I think again, that’s the on the low end of your worries.

Because the things that you’re going to get in trouble for, if that happens lacks cybersecurity, those are not. I represent a lot of lawyers, and those are not things you get disbarred for typically, those are things you get censured or maybe suspended for a brief period, but it’s not like if you’re not stealing the money then you’re not going to get disbarred, so I think those are lesser concerns than the actual financial loss and the disruption of your business for gosh sakes.

Sharon D. Nelson: Absolutely, and I have yet to see somebody be sued or seriously disciplined for any kind of data breach, but Jim, let’s before we move on to our last segment, let’s take a quick commercial break.

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Welcome back to The Digital Edge on the Legal Talk Network. Today, our subject is The Cloudy Ethics of Cloud Computing, and our guest is Lucian Pear, who is a partner in Adams and Reese LLP.

Lucian, how plugged into lawyers ethical cybersecurity obligations are barred disciplinary council these days. My experience has been that they are struggling to get educated. Do they know technology well enough to understand the ethical implications of cloud computing, do you think?

Lucian Pera: I think they’re learning them. I’ve certainly seen them climbing the learning curve, there’s often one or two lawyers in a particular office who knows some of it. I mean, think of them as being like criminal defense lawyers or even divorce lawyers, they are having to learn some of those techniques.

Jim Calloway: If a law firm decides to make a wholesale move to the cloud, do you think it’s important for that law firm to have a cybersecurity policy or should everybody have a cybersecurity policy? Today, is that just a part of risk management in the digital era?

Lucian Pera: It’s absolutely a part, I mean, first of all, define your term, cybersecurity, that includes everything about protecting confidential information in any digital format. Gone to an extreme you see things like, even clean desk policies and such, but it includes passwords and VPNs and password policies and changes. Yes, everybody’s got to have that. I mean, I don’t know how a lawyer can practice law without being exposed to enough technology that they have to have. I mean, one lawyer with an iPad and maybe a laptop and a legal pad and a Lincoln, right? Then you need a cybersecurity policy.

Their policy is they use a real password and they change it all the time and they make sure they’re not, doing things dangerously at Starbucks, but yes, everybody has got to have what we would in a fancy way call a cybersecurity policy. It is the days when you could just not worry about that they are gone if they ever existed.

Sharon D. Nelson: They never existed once the digital world came into being and it’s just gotten worse and worse and worse as everybody’s gotten more sophisticated with the things they can do and the way they can steal or corrupt or delete data. So, Lucian, we are so grateful that you are a guest today, we know how busy you are and you certainly are one of our most colorful guests, it’s always a party with you. So, thanks for coming to our party.

Lucian Pera: Thanks for having me.

Sharon D. Nelson: And that does it for this edition of The Digital Edge: Lawyers and Technology. Remember, you can subscribe to all of the editions of this podcast at legaltalknetwork.com or on Apple Podcasts. And if you enjoyed our podcast, please rate us in Apple Podcasts.

Jim Calloway: Thanks for joining us. Goodbye Ms. Sharon.

Sharon D. Nelson: Happy trails, cowboy.

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Outro: Thanks for listening to The Digital Edge, produced by the broadcast professionals at Legal Talk Network. Join Sharon Nelson and Jim Calloway for their next podcast covering the latest topic related to lawyers and technology. Subscribe to the RSS feed on legaltalknetwork.com or in iTunes.

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