By Jim Calloway and Ernie Svenson
ABA TECHSHOW Faculty 2015

Everybody appreciates the importance of good backup procedures. But everyone does not implement great backup procedures. Part of the reason is that hard drives today are much more reliable than those of a few generations ago. But the main reason is that because we are all so busy, it is easy for a backup procedure involving a lawyer or law firm staff to be overlooked or delayed.

A convincing argument can be made that good backup receipt procedures are not only a requirement of running a business today, but also an ethical requirement for lawyers. The need for a firm to appropriate backup to protect client data is implied in RPC 1.1, 1.3, and 1.4.

We are both strong believers in the need for a paperless office and digital workflows.

Many lawyers making the transition to paperless still keep a duplicate paper client file, but there are significant downsides in using a paper file as a backup. These range from the tendency of lawyers to revert to using the paper file and failing to update the digital file, to a lawyer relying on paper file at the last minute only to discover that the law firm’s reliance on paperless processes means that the paper file has not been updated and is missing important documents or notes.

Our profession is in a transition from reliance on paper client files and other physical information storage systems to a complete reliance on digital client files and paperless workflow.

An important part of making that transition is absolute rockhard certainty that you will always have access to your digital information when you need it. This means that no law firm should have its future and its client matters protected by only one form of backup. It also means that lawyers and staff should be trained on how to cope with a data loss, temporary inaccessibility of data, loss of power, or loss of Internet access. Lawyers must be trained on how to react in the event of such an emergency. (Otherwise you run the risk that a panicked lawyer may fail to recognize that his or her phone or tablet powered by a different Internet service provider can serve as a redundant form of Internet access, for example.)

Backing Up Local Data to the Cloud

When it comes to backups, there is a rigid mantra that all savvy computer consultants know by heart: the only truly reliable backup is an offsite backup.

In other words, while it’s nice to have a backup that you make from your computer to an external hard drive, that’s not truly secure. Why? Well, because whatever physical catastrophe can happen to your local computer will probably affect the local backup as well.

Here are some examples:

  • Fire in your office
  • Tornado that hits your office building
  • Flood that fills your office with standing water.
  • Theft of your computer equipment.

People tend not to think about the theft example, but it happens. Filmmaker Francis Ford Coppola had a computer stolen that had 15 years’ worth of his movie scripts. He had a local backup on an external hard drive. But when the thieves took his computer, they also stole his external hard drive.

So, again, you want a backup that sends your data offsite so that local catastrophes don’t affect the backup.

In the old days, having an “offsite backup” meant doing a nightly backup and then physically transporting the backup tapes to another location. This took time, was cumbersome, and only allowed for nightly backups. If a disaster happened during the day, all of the new data was going to be lost. Plus if the individual who is transporting the hard drive home loses the drive or has his or her car stolen, you may find yourself in the position of having to notify all of your clients that there’s been a potential data exposure of their confidential information.

Today, the solution is to use a cloud-based service that continuously backs up data as it is created: immediately and reliably. These services are very affordable, and are the easiest way to reliably backup local data in a way that provides incredible peace of mind.

Among the services that provide these services are:

  • Carbonite
  • Backblaze
  • Crashplan
  • SpiderOak

These services work with any kind of computer—Mac or PC. If you find a service that doesn’t work with both types of computer then consider that a bad sign. The whole point of cloud backup services is to make life easy and if you have to start thinking about what kind of computer you can buy to make them work, then life isn’t going to be as easy.

Some of the online backup services also offer syncing to other computers. Crashplan offers such services, and so you might want to consider if you not only need backup, but also real-time syncing to other computers.

The prices for basic online backup (without syncing) vary slightly, or greatly depending on add-on features you select, but in general expect to pay in the range of $5 to $12 per month for “personal level” features. Most of these services offer a free trial period so you can investigate how they work and decide which one is best for your purposes.

These services offer business class backup, as well personal backup. Maybe you can get away with using the lower-cost personal services, but in general you want to use the business class service if you can afford it.

One feature that the business class services typically provide is centralized administration, which will allow you to be in control of backups happening on the various computers that everyone in your firm is using. You don’t want to have to rely on going around to each computer and physically checking to see if backups are occurring, or to tweak settings if that becomes necessary. And with the business class services you can even backup your local servers if you have that need.

How Many Belts Go With Your Suspenders?

In conclusion, this is really the ultimate question, even if it is worded colloquially. You have a set of data on your computer and your computer network. You understand that you need at least one additional copy of the data, the proverbial data backup.

It is our experience that this functions much better when done on automated, online process rather than relying on an individual in a busy law firm to do it manually. But then what? Should you get a portable hard drive and manually make an additional copy of the backup from time to time? Should you get two of those portable hard drives so that one can always be stored off site?

At some level, this is still a matter for each individual lawyer or law firm to decide. But it is also fair to say at this point that having no backup is not a rational and responsible decision for your clients or for your law practice.

This article is but a taste of what awaits you at the ABA TECHSHOW 2016, March 16-19 at the Hilton Chicago. As a member of the State Bar of Texas, you can get a discount on the standard registration. Register online and include this unique discount code, EP1621.

Reprinted with permission. 2015© by the American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.