Ezel / Ethics Opinions / SBAND

Did the committee permit a law firm to use an online data backup service for client records?

Short answer The committee found no Rule 1.6 violation if the firm ensured that transmission and storage security matched the sensitivity of the records and access was limited to authorized personnel.
Bar
SBAND
Issued
June 21, 1999
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1999. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: Under North Dakota Rule for Lawyer Discipline 1.2(B), a lawyer who acts in good faith and in reasonable reliance on a written opinion of the association's ethics committee is not subject to sanction for the conduct the opinion addresses. Source.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A firm asked whether it could transfer client data to an online backup provider that kept data on servers and offsite media. The committee considered both transmission over the Internet and storage at the provider.

The committee concluded that the service did not itself violate Rule 1.6 if security for both transmission and storage was adequate for the sensitivity of the records. It said access had to be limited to authorized personnel, including controlled password disclosure. Its comparison to routine unencrypted email reflected the technology and law discussed in 1999.

Currency note

This opinion was issued in 1999, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement.

Common questions

Q: Did the opinion permit any online backup service regardless of its controls?

A: No. Its conclusion depended on adequate security for transmission and storage, measured against the records’ sensitivity.

Q: Who could access the stored records?

A: The committee said access had to be limited to authorized personnel, generally by controlling the password.

Q: Did it consider transmission as well as storage?

A: Yes. The opinion addressed both Internet transfer and the provider's storage of electronic data.

Background and rules framework

The opinion applies North Dakota Rule 1.6 on client confidentiality. It cites North Dakota Opinion 97-09 on routine client email and ABA Formal Opinion 99-413 on email privacy as part of its 1999 analysis.

Citations and references

Rules of Professional Conduct:

  • North Dakota Rule 1.6.

Other opinions cited:

  • North Dakota Opinion 97-09, routine unencrypted client email.
  • ABA Formal Opinion 99-413, unencrypted email under the Model Rules.

See also

Source

Original opinion text

Full opinion text unavailable from the official source; see the linked source above for the complete text.

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