And some of your documents, your notes, your impressions and your research are also work product. You can trade the risks of working in the cloud against the opportunities to do a better job for your clients. Most of what you do with practice management software isn’t about attorney-client privilege – it’s about your work product. I’m comfortable with practice management in the cloud.

I’ve been working with a client to help resolve these issues as they move their case management system “to the cloud.” The cloud provider is Clio, and I’ve been using the service as well. You are waiving the privilege if you don’t take reasonable steps to ensure your clients’ documents are secure. If there is a data breach, you are responsible. And if you want to put it online, you need to take the same precautions as you used to before cloud computing came along. Confidential data should be under lock and key in your office. If risks of interception and accidental misdirection are acceptable for the pony express, the same goes for e-mail. And state bar opinions distinguish how you handle confidential data from email. There’s no case law to suggest that malicious or accidental third-party access to your client’s information in the cloud is covered by the eavesdropper exception. You either keep the privilege or you waive it. You make the trade off between security and opportunity and strike a balance. Using these online services is a business decision. So when I hear of lawyers discovering the wonders of Evernote (which is wonderful) or cloud storage (which is free) or Software as a Service (which is better than aspirin), I wonder if they practice law on the same planet as me. The right to be a Keeper of Secrets is priceless. The license to be an attorney and practice law is a very nice thing to have. I am a walking, talking, living, breathing NDA.

Clients don’t have to get me to sign an NDA. Do your clients tell you secrets? Mine do.

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