Legalmatter

By: Brian J. Meli

It often takes a tragedy to upset the status quo. In this way, tragedy can plant the seeds of progress. So not surprisingly, in the aftermath of the destruction wrought by Hurricane Sandy and the subsequent dawning of the “era of the superstorm,” there’s been a lot of rethinking assumptions and reevaluating priorities.

As lawyers, expecting the unexpected is what we do for a living. We take a lot of pride in preparing our clients for the worst-case-scenario; insisting on the force majeure clause, advising adequate levels of insurance etc. But while we’re forever impressing upon clients to expect the unexpected, how good are we at taking our own advice?  When Mother Nature sets her sights on us, are we ready?  If you’re a lawyer practicing in the greater New York area, this isn’t a hypothetical question.

While I was spared much of Sandy’s wrath, the stories from colleagues who weren’t so lucky continue to rattle me; like the one about an attorney who lost a career’s worth of client records when the “secure” storage facility housing them was submerged waist-deep in seawater. The lengths some desperate attorney’s went to recover files damaged by the storm are hard to comprehend. I’m thinking of one firm in particular, whose employees, armed with an arsenal of industrial-strength hair dryers, went through their water-logged files box-by-box; air drying each potentially salvageable document by hand. The mere thought of the time and resources involved gives me chills.

In the weeks and months since the storm of the century, I have, like many attorney’s in my area, learned a lot about document preservation services. For a substantial fee these companies can wring the moisture out of your soggy documents by vacuum freeze drying them, but the key to the process is getting the job done before the mold can gain a foothold, which leaves you with roughly a 48-hour window to act.

Of course Sandy was an extreme event, and these are extreme examples. But it does at least raise the question of whether, in the truly innovative times we practice in, desperate times must call for such desperate measures.

The debate between hard document storage and the virtual variety isn’t a new one. Most of us back up our files on hard drives, and even the most paper-dependent among us rely heavily on document scanners, but hard drives and physical servers located on premises don’t reduce the risk posed by weather-related events. Despite its many advantages, silicon doesn’t repel water or fire any better than paper does.

Enter the cloud.

Cloud-based services have been widely available for years now, but some practitioners have been hesitant to fully embrace them, whether because of security concerns, ethical questions regarding the handling of confidential data, or simply an ingrained reluctance to part with paper.

The question of whether or not to send your practice should migrate to the cloud isn’t as cut and dry as it may sound though. To answer it intelligently requires an honest assessment of what you mean by ‘the cloud’ as well as how you define your practice. Firms use the cloud to varying degrees, and for vastly different reasons. For example SaaS (software as a service) are cloud-based services that have been used for some time by smaller firms looking for basic client and case management services like timekeeping, billing, and conflict checks. These services reduce the need to purchase and download software, and give lawyers multiple access points across devices. However, while SaaS can help streamline a law practice, it provides only limited protection in the area of disaster recovery.

A big benefit of the cloud, not just for lawyers, but any professional looking for a safe, effective way to secure critical files, are cloud-based data storage and back-up solutions, which offer high-volume data storage packaged in affordable monthly plans. These services, which can provide either primary or redundant storage, typically back up data incrementally, so only files that are new or altered are saved. And for the security conscious lawyer, which is all of us, these services are offered with 128-bit encryption, and Secure Socket Layer (SSL) data transmission technology. They can also be scaled to meet the needs of practices large or small.

One of the best benefits though of cloud-based storage is geographical redundancy, which is exactly what it sounds like. If your bits are lost in one location due to a catastrophic failure (whether it be a fire, leaky pipes or the occasional superstorm), those bits are backed up and retrievable from another location, allowing you to save on hair dryers. And compared to hosting servers on your own premises, or maintaining a physical storage unit somewhere offsite, these services are relatively inexpensive.

As with most types of technology, using the cloud as a primary means of storage and data backup isn’t for everyone. For some types of practitioners, whose documents must be kept in hard form, a full cloud storage solution may not be the best option.  And there are still lingering ethical issues that should be kept in mind. The ABA, along with most state bars have promulgated ethics opinions on the use of cloud-based solutions, for the most part requiring that reasonable care be taken when selecting a cloud solution to use in the practice of law. A few jurisdictions meanwhile have issued the equivalent of opt-in and opt-out requirements for practices with clients with particularly sensitive information. Here is a full list of ethics opinions, by state.

Still, for many lawyers the rewards of going to fully virtual storage are starting to outweigh the risks. But while we lawyers are experts at weighing risk, embracing change is something we could still probably use some work on. Who knows, the increasingly erratic fluctuations in our climate could provide the final incentive we need to fully embrace the notion of the law firm in the cloud.

The content of this blog is intended for informational purposes only. The information provided in this blog is not intended to and does not constitute legal advice, and your use of this blog does not create an attorney-client relationship between you and The Law Firm of Brian J. Meli. Under the rules of certain jurisdictions, the material included in this blog may constitute attorney advertising. Prior results do not guarantee a similar outcome. Every case is different and the results obtained in your case may be different.