Can a New York Attorney Use Google Docs?

David Hricik posed the following question on The Legal Ethics Forum:

When you use Google Docs, you give Google the following license to “Content” which is, basically, everything you put up:

11. Content license from you

11.1 You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This license is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.

11.2 You agree that this license includes a right for Google to make such Content available to other companies, organizations or individuals with whom Google has relationships for the provision of syndicated services, and to use such Content in connection with the provision of those services.

11.3 You understand that Google, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit Google to take these actions.

11.4 You confirm and warrant to Google that you have all the rights, power and authority necessary to grant the above license.

Query whether this is ethical for lawyers to use?

Subsequent to Hricik’s original post, a commentator posted additional language from a related document that adds the following limitation on Google’s bolded rights: “for the sole purpose of enabling Google to provide you with the Service in accordance with the Google Docs Privacy Policy.”

Here are some relevant portions of the Google Docs Privacy Policy:

Information We Share

We do not share personal information with companies, organizations and individuals outside of Google unless one of the following circumstances apply:

. . .

For legal reasons

We will share personal information with companies, organizations or individuals outside of Google if we have a good-faith belief that access, use, preservation or disclosure of the information is reasonably necessary to:

  • meet any applicable law, regulation, legal process or enforceable governmental request.
  • enforce applicable Terms of Service, including investigation of potential violations.
  • detect, prevent, or otherwise address fraud, security or technical issues.
  • protect against harm to the rights, property or safety of Google, our users or the public as required or permitted by law.

The New York State Bar Association Committee on Professional Ethics has addressed the storage of documents in the cloud in Opinion #842 (the link is here), concluding as follows:

We conclude that a lawyer may use an online “cloud” computer data backup system to store client files provided that the lawyer takes reasonable care to ensure that the system is secure and that client confidentiality will be maintained. “Reasonable care” to protect a client’s confidential information against unauthorized disclosure may include consideration of the following steps:

  • Ensuring that the online data storage provider has an enforceable obligation to preserve confidentiality and security, and that the provider will notify the lawyer if served with process requiring the production of client information;
  • Investigating the online data storage provider’s security measures, policies, recoverability methods, and other procedures to determine if they are adequate under the circumstances;
  • Employing available technology to guard against reasonably foreseeable attempts to infiltrate the data that is stored.

Based on the foregoing, it appears that the answer to David’s question for New York attorneys is, in a word, “no.”  At least not on the terms quoted above, even as modified by the rider. An attorney has no “enforceable obligation” against Google which requires Google to preserve the confidentiality of the attorney’s documents

The rider doesn’t even come close to creating the level of protection described in Opinion #482. Perhaps the New York or American Bar Association should develop a standard agreement that cloud document providers must incorporate if they want attorney business? Otherwise, the individual attorney doesn’t have much negotiating power and isn’t going to be able to get the terms she needs.  At least not out of Google.   

By the way, did you know that Google is in the legal services business

Link Ethically

1. Botox is not exempt from New York State sales tax.

2. The power of strategic inferiority.

But sometimes the most successful innovations involve coming up with inferior products, but making them cheaper and more convenient. So it was with the late Murray Lender, former CEO of Lender’s Bagels, who passed away last week at the age of 81.

Rest in peace, Murray.

3. Is there anything wrong with defendants wearing nonprescription glasses?

According to the Post, nonprescription “hipster” glasses have become something of a sensation at Washington, D.C., courthouses. Inmates trade them before hearings or obtain them from family members. Sometimes lawyers give them to their clients.

We all know that wearing glasses doesn’t mean that you are smart, or that you necessarily read a lot. You would think that the frequency of defendants wearing glasses would, at some point, lead people to perceive the wearing of glasses as being indicative of a less trustworthy personality.  See Exhibit “A” below.

4. On “greenwashing,” and the lawsuits related thereto.

As the world increasingly embraces the mantra of green products and services, the legal community is encountering a proliferation of litigation surrounding false and misleading environmental marketing claims. Popularly called “greenwashing,” this recent, albeit alarming, phenomenon merges the concepts of “green” (environmentally sound), and “whitewashing” (to gloss over wrongdoing) to describe the deceptive use of green marketing which promotes a misleading perception that a company’s policies, practices, products or services are environmentally friendly. “Eco-Friendly,” “organic,” “natural,” and “green” are just some everyday examples of widely used labels that can be confusing, even misleading.

Nike Obtains Injunction Against Reebok For Unethical Tebowing

Check out this story about a massive feud brewing between Nike and Reebok.  

Nike, which takes over as the official NFL merchandise manufacturer on April 1st after Reebok held that distinction for the past 10 years, is not too pleased that Reebok took advantage of Tebow-mania hitting Broadway (the Denver Broncos traded Tim Tebow to the New York Jets on March 21st) by rushing a bunch of Jets jerseys with Tebow’s name and number to market before Reebok’s deal with the NFL expires on March 31st.

An injunction was issued yesterday prohibiting Reebok from selling any more Tebow/Jets merchandise and requiring Reebok to recall the offending Tebow merchandise.  (Nike Inc. v. Reebok International Ltd., 12- cv-2275, U.S. District Court, Southern District of New York).

I can see the ethics of both sides here.  Nike thinks Reebok unfairly flooded the market with Tebow merchandise near the end of Reebok’s deal with the NFL in order to ensure that Reebok continues selling jerseys well after its contract expires.  On the other hand, Reebok thinks that it was right and justified in producing Tebow merchandise to meet the instant demand created by the Tebow trade, since it was and continues to be (at least for a few more days) the official NFL merchandiser.

Who’s right?  At least for now, U.S. District Judge Kevin Castel says it’s Nike.  Should be a fun case to watch.

At $135 Dollars Per Pet, Wouldn’t it be Unethical to Leave Fluffy to Fend for Herself After the Rapture?

From NPR, “Was Promise of Pet Care After the Rapture a Hoax?” The New Hampshire Insurance Department is investigating Eternal Earth-Bound Pets to determine exactly that.  Here is the company’s website.

Useful info from the company’s FAQ page:

Q: What if one of my family members are left behind. Will you still take possession of my pet?

A: That depends. When the rescuer arrives, if your loved one wants to retain possession of the pet, the pet stays in the home.   We expect in these circumstances that the pet will offer the family member some comfort and stability given the trauma of what has occurred.  If the family member prefers, we will adopt the pet per our contract.

Q: How can your rescuers possibly pay for my pet’s care for only $135.00?

A: The $135.00 fee for one pet is not for the cost of their care.  It is to compensate the rescuers for their travel, cover website expenses, and provide a profit margin.  The rescuers have agreed to adopt your pet as their own and care for them as they do their own pets, at their own expense.

Prospective Employers Want What? …No Thanks!

According to recent news reports, some employers are now demanding Facebook passwords for background check purposes.  Are you kidding me?!?!  Facebook responded yesterday in this story by the Associated Press, cautioning about the ethical and legal ramifications of this practice:

NEW YORK (AP) — Facebook is warning employers not to demand the passwords of job applicants, saying that it’s an invasion of privacy that opens companies to legal liabilities.

The social networking company is also threatening legal action against those who violate its long-standing policy against sharing passwords.

An Associated Press story this week documented cases of job applicants who are being asked, at the interview table, to reveal their Facebook passwords so their prospective employers can check their backgrounds.

In a post on Friday, Facebook’s chief privacy of policy officer cautioned that if an employer discovers that a job applicant is a member of a protected group, the employer may open itself up to claims of discrimination if it doesn’t hire that person.

“As a user, you shouldn’t be forced to share your private information and communications just to get a job,” wrote Erin Egan. “And as the friend of a user, you shouldn’t have to worry that your private information or communications will be revealed to someone you don’t know and didn’t intend to share with just because that user is looking for a job.”

Not sharing passwords is a basic tenet of online conduct. Aside from the privacy concerns, Facebook considers the practice a security risk.

Facebook spokesman Andrew Noyes said that the company doesn’t think employers should be asking applicants for their passwords because “we don’t think it’s the right thing to do.”

“While we do not have any immediate plans to take legal action against any specific employers, we look forward to engaging with policymakers and other stakeholders, to help better safeguard the privacy of our users,” he said.

Wow…

I’m not a chronic Facebook user by any means (I’m lucky if I log on once a month), but if an employer asked me for my password, I’d have serious reservations about working there.  Not that I have anything to hide (pictures of my daughters and the fact that I “like” the Denver Broncos aren’t likely to end up in my employment file…unless the boss is a Raiders fan).

But what about my friends?  Don’t I have an ethical obligation to protect their privacy?  It’s bad enough that Facebook seems to change its privacy policy every few weeks, requiring users to log on and make sure their privacy settings are up to snuff.  Now people after worry about their friends’ employers scoping out their Facebook pages?

Maybe my anti-Facebook friends aren’t so crazy to shun social media after all…

It’s Too Bad that the Ethical Canons Don’t Apply to Law Schools – Part II

The lawsuit against New York Law School was tossed from court this week. The story is here.  A key piece of the decision (via the ABA Journal):

“The court does not view these post-graduate employment statistics to be misleading in a material way for a consumer acting reasonably,” the judge wrote. “By anyone’s definition, reasonable consumers—college graduates—seriously considering law schools are a sophisticated subset of education consumers, capable of sifting through data and weighing alternatives before making a decision regarding their post-college options, such as applying for professional school. These reasonable consumers have available to them any number of sources of information to review when making their decisions.”

(Emphasis added).

I think that the evidence is quite to the contrary. If prospective law students do in fact represent a sophisticated subset of education consumers, and they were duped in droves by job placement statistics, then the statistics were, in fact, misleading in a material way.
The question is whether their reliance was “reasonable.” Given how many people did rely to a greater or lesser extent on those statistics (present company included), its hard to argue that our reliance was unreasonable, unless you conclude that the vast majority of prospective law students are unreasonable.  (While there is plenty of evidence to support this, usually reasonableness gauged by what the average person would have done in the same circumstances). This presents a rather unworkable standard.
Until the last couple of years, the prospective student who kicked the tires on his or her potential school’s employment or other statistics would have been in the extreme minority.  The prevailing mood in our society, for generations, has been to place trust in institutions of higher learning as bastions of meritocracy, political and academic independence and integrity. So yes, it was reasonable for prospective students to trust that law schools were not engaging in Enron-style tricks to improve their post-graduation job placement stats.
The education market, by the way, is starting to sort this out.

A Duty of Loyalty for Make Benefit the Glorious Nation of China

From the Guardian, Chinese lawyers must now swear loyalty to the leadership of the Communist Party:

China‘s justice ministry has ordered lawyers to take an oath of loyalty to the Communist party in an unusual move that has drawn condemnation from lawyers worried about the government’s attempts to rein them in.

The ministry issued a notice on Wednesday demanding that first-time applicants and lawyers who want to renew their licences have to take the oath.

I promise to faithfully fulfill the sacred mission of socialism with Chinese characteristics … loyalty to the motherland, its people, and uphold the leadership of the Communist party of China,” lawyers must say.