Rich Granat on http://www.elawyeringredux.com:
“The requirement that in every case the client’s express consent to store confidential information in the cloud is not realistic and not consistent with the way web technology is evolving. There are clearly situations where it would would be reasonable under the circumstances to secure a client’s consent for storing confidential information in the cloud, but the way this Opinion is framed law firms will interpret to this mean that in every case the client’s express consent needs to be explicitly secured. This adds unnecessary "friction" to creating the lawyer/client relationship.
This requirement actually puts Massachusetts lawyers, particularly solos and small law firms at a competitive disadvantage. Solos and small law firms now have to compete against software powered non-lawyer sites such as LegalZoom, LegacyWriter, MyLawyer.com, and RocketLawyer, to name only a few. None of these non-lawyer web sites require that their customers provide express consent to store their confidential data in the cloud, and if they do, the consent is buried so deep in the fine print that the average user is completely unaware of what they are consenting to.
The Opinion cites Google Docs as its leading example, which is a good example of how out of touch the Bar is with emerging technological trends. It won’t be long before a person will be able to create a Will using a mobile app on their cell phones.
Must the user then be required to give their express consent before storing their data? What does that "express consent" mean in a mobile application context? The necessity of preserving the integrity of the lawyer/client relationship through the appropriate application of ethical rules is clearly appropriate. But adding unnecessary "friction" to accessing legal services for the average consumer is just going to result them turning to alternative non-lawyer providers who operate with less restrictions. Restrictions like this impede innovation in the delivery of legal services by the legal profession. No wonder the legal profession is lagging behind every other service industry in adapting to the mobile social web.”
This will be a point of particular concern if Modria moves into more legal areas of service delivery. Definitely something to keep an eye on.