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

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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.

Ethics and the culture of Goldman Sachs

There is an interesting piece in the New York Times today entitled “Why I Am Leaving Goldman Sachs.”  The author was – until today, apparently – an executive director at the company.

These days, the most common question I get from junior analysts about derivatives is, “How much money did we make off the client?” It bothers me every time I hear it, because it is a clear reflection of what they are observing from their leaders about the way they should behave. Now project 10 years into the future: You don’t have to be a rocket scientist to figure out that the junior analyst sitting quietly in the corner of the room hearing about “muppets,” “ripping eyeballs out” and “getting paid” doesn’t exactly turn into a model citizen.

The author almost certainly has non-altruistic motives in writing the article (he must see it as good PR for some future activity) – or is painfully naive, but he presents what is probably a fairly accurate depiction of the culture nonetheless.

One things is certain: Goldman Sachs would have a lot of trouble making money off of its clients if it had to comply with the Rules of Professional Conduct.

Addendum: Here is a brilliant parody from The Daily Mash “Why I am Leaving the Empire, by Darth Vader.”  A quote:

To put the problem in the simplest terms, throttling people with your mind continues to be sidelined in the way the firm operates and thinks about making people dead.

Welcome to Think Ethically

Welcome to Think Ethically. This blog is dedicated to exploring the ethical rules governing attorney marketing in New York. It’s written by attorneys trying to live by those rules (and with them) while trying to grow their practices and represent their clients. This blog will also explore the foundations of ethics in general, and will search for lessons in ethical failures in society at large.

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