THE LAWYERS WEEKLY
April 29, 2011 | 25
Continued From Page 22
Some law societies are just
beginning, if at all, to grapple
with the issues that cloud
computing raises. As a lawyer
specializing in information
technology points out, “we
practitioners tend to be a little
ahead of the curve.”
While the American Bar Asso-
ciation is considering proposing
amendments to the Model Rules
of Professional Conduct, such as
Model Rules 1.1 (competency),
1.6 (duty of confidentiality), 1.15
(safeguarding client property),
the Canadian Bar Association
has “not established its position”
regarding cloud computing, said
Hannah Bernstein, CBA’s direc-
tor of publishing. Nor has the
Barreau du Québec, even though
it is scheduled to publish a guide
in late spring for lawyers on
using the Internet.
The Law Society of British
Columbia, on the other hand, is
now in the midst of examining
the issue, said Gavin Hume,
B.C.’s law society president. Last
September, the law society’s exec-
utive committee struck a working
group to “look into what rules
and policy” the law society “will
need” for B.C. lawyers who are
using cloud computing and
remote processing and storing of
business record. The committee
is also examining B.C. lawyers’
use of electronic storage, both in
and outside of the province. In
the meantime, the law society
points out that lawyers must
ensure they are meeting their
obligations in accordance with
the law society rules, its Profes-
sional Conduct Handbook and
Canadian Health Law and Policy,
Editors: Jocelyn Downie B. A., M. A., M.Litt. LL.B., LL.M., S.J.D.,
F.C. A.H.S., F.R.S.C., Timothy Caulfield, B.Sc., LL.B., LL.M.
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Questions that should be asked
At first glance cloud computing agreements look simple
and straightforward. They are not. In fact, most tend to be
terms of service that may be found in a website that may
periodically change, without giving notice to the consumer.
They may also have acceptable user policies that “you
may or may not see when you sign up,” and they
Lisa Lifshitz, a Toronto lawyer who
specializes in preparing and
negotiating technology licences
“Don’t accept necessarily the
terms that are presented to you
unless you really understand what
you’re signing up for— negotiate
them,” said Lifshitz, a partner with
Gowling Lafleur Henderson LLP.
Lifshitz suggests that lawyers or law firms
exploring cloud computing conduct a needs-assessment
exercise, followed by a careful examination of the
contract, and then due diligence.
Lifshitz recommends asking cloud providers the
following series of questions:
n;Is there a single agreement? Or are there references to
outside documents, such as online acceptable use policies,
that the vendor may unilaterally change over time?
n;Does the agreement contain service levels for
uptime and availability?
n;What does the contract say about where the data and
servers are located? Where does the data go? It might be a
good idea to insist the data reside in Canada, said Lifshitz.
n;What levels of protection are guaranteed? How fre-
quently are back-ups performed? Is data backed up to
more than one server? What types of encryption
methods are used?
n;Whose got access to the data? What
“technological organizational practices”
are in place? What physical protection?
How secure are the data centres?
n;What happens in the event of
data breach? Will the lawyer or law
firm be notified? What warrantees
does the cloud provider provide? How is
data breach or loss compensated? Lifshitz
points out that “a lot of the contracts don’t talk
about data loss or disclaim any losses for damages
for loss of data.”
n;Is the vendor itself outsourcing certain services and
functionality to third party providers? If so, what are the
terms and conditions of the services provided by the out-
sourcer? Will the terms and conditions negotiated with the
cloud provider apply to the outsourcer or will yet another
agreement have to be drafted?
n;When and how can the customer get his data back?
“Some of the biggest problems relating to this is data being
held hostage or customers being unable to get their data
back,” said Lifshitz.
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