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


Alexander v. Cahill and Rule 7.3 of the Rules of Professional Conduct

New York State’s Rules of Professional conduct contain both aspirational and mandatory dimensions.  For the most part, attorneys have accepted the imposition of the mandatory rules without challenge.  One of the problematic rules from the perspective of marketing a transactional practice is found in Rule 7.3, which essentially prohibits any form of real-time solicitation of work from potential clients unless the target is a close friend, relative, or a former or existing client.  In other words, you cannot approach someone that you know may need specific transactional services in person or over the phone and offer your services (unless you effectively already have a relationship with them).

If one considers the situation of an attorney calling an unsophisticated person who has been in an accident or inherited some money, it is not hard to understand the rationale of Rule 7.3.  However, if you consider that this rule would also prevent a tax attorney (say, me, for example) from calling the highly sophisticated CEO of a Fortune 500 company (who would almost certainly have me dumped into the voicemail of someone in the mail room), the potential for abuse is nonexistent.

Consider, then, the recent case of Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010) in which it was established that the Rules of Professional Conduct are subject to constitutional limitations established by the First Amendment.

The challenge in Alexander was focused on certain of New York Sate’s rules which became effective in 2007.  Part of the challenge was focused on restrictions on advertising content (use of nicknames and irrelevant images – think lawyers representing space aliens – in ads).  To oversimplify a bit, the Second Circuit held that: (1) attorney advertising is speech that is protected by the First Amendment; and (2) New York has an interest that is materially advanced by the challenged rules; but (3) at least with respect to certain of the advertising content rules, the rules were not narrowly tailored enough around the potential harm and as a  result were unconstitutional.

So back to the CEO that I am trying to call.  Presumably Alexander would apply to Rule 7.3.  Arguably, the application of Alexander would be, (1) that my commercial speech is protected by the First Amendment; and (2) that New York has an interest in protecting the unsophisticated tort victim; but (3) Rule 7.3 is arguably so broadly written that it is unreasonably infringing my First Amendment rights unnecessarily.  The argument would be that the Rules could easily incorporate a distinction between the solicitation of individuals or for certain kinds of representation where the possibility of abuse is relatively high (i.e. family law, personal injury claims, elder law), and therefore the rule could easily be tailored to fit the danger.

The Bar has a very strong interest in developing a more narrowly tailored rule here. While attorneys are prohibited in many circumstances from informing potential clients about the services that they provide and the relevant legal issues, the massive “consulting” industry is not.  The result is that attorneys lose work, and businesses and nonprofits are intentionally or unintentionally misled by management and transactional consultants who have only a limited understanding of the legal issues involved in their work.  From what I have seen, this phenomenon is growing and will continue to grow to the detriment of clients and the economic interests of the Bar.

In short, it is time to revisit the restrictions imposed on attorney marketing and make sure that they are only so broad as necessary to combat any potential harm.