Cloud computing throws up some serious questions – if only lawyers would put their smartphones away and listen.

As a cartoon of modern etiquette, the scene could not have been more striking. I had instructed the first speaker in a conference session I was chairing on ‘Cloud computing’ to explain the exact meaning of the term. I looked out at the audience in the darkened theatre as he spoke, and saw that many a face was lit by the glow of a portable device – smartphone, tablet or laptop.

The assembled participants (at the International Bar Association’s 9th Annual Bar Leaders Conference in Brussels) were taking advantage of passive listening to catch up with their world… made possible by the very topic on which their attention was being sought.

I don’t blame them. I would have done the same. When else to catch up on emails, world news, sports or tweets? Conference speakers these days are lucky if the audience looks up at them once every 10 minutes or so. From the eyrie of the platform in Le Plaza Theatre (a restored cinema), it occurred to me that modern speakers will soon have to resort to other means to attract an audience’s attention: setting off a firework maybe, or throwing coins and notes to the front rows.

I did notice that certain rhetorical devices, such as sudden changes in speaking tone, or the telling of a personal anecdote, had the Pavlovian effect of causing heads to rise from screens. But within moments, they were bowed again.

I know, habits have changed. We see that when a young couple arrives at a restaurant and spends the first minutes, even before looking at the menu, checking their phones for messages. It doesn’t mean that they don’t love each other. And so our audience proved engaged and responsive after all. There were some excellent questions. I hope it doesn’t seem like outrageous boot-licking to say that the best came from the president of the Law Society of England and Wales.

He waited until the last moment, when we were about to break for lunch. Then, with dramatic effect suitable for a former cinema, he hobbled up on crutches (tortured by the lord chancellor for lèse-majesté? Or set upon by disgruntled legal aid lawyers?).

He asked whether, in relation to data stored on the kind of devices I have been describing, and left maybe in a taxi or on the train, the regulator should follow the law’s standard of liability, or a higher standard in accordance with a concept of stricter client confidentiality. If a client chooses to send us data in an unencrypted email from a Google account, should we as lawyers have higher standards of custodianship? Unfortunately, his timing kept this a largely rhetorical question.

The president of the Law Society of Scotland was present in a kilt (apparently hoping to trump the crutches). He made a statement during the session, and then came up with a very good point in private discussions afterwards. Some speakers had mentioned the cloud computing guidelines of the Council of Bars and Law Societies of Europe. But he and a Danish colleague referred to the cloud computing checklist of the Law Society of British Columbia, which I recommend to all readers.

This checklist includes the question of access by the regulator to the lawyer’s data, maybe long after the lawyer has died or gone out of business. As examples of questions a British Columbia lawyer should ask before engaging in cloud computing: ‘Does the cloud provider archive data for periods that meet or exceed the Law Society of British Columbia’s retention requirements?’ and: ‘Can the Law Society of British Columbia obtain view and printing access to all records when required?’

I was surprised by how calm the audience remained. This is not my usual experience of this topic. But though speakers referred to the impossibility of absolute security, to the ease of password theft and device loss, to the certainty of government surveillance, to the prospect of one of the big cloud providers going bankrupt one day with unforeseeable consequences for their data banks, to data being stored in multiple locations around the world, no one stood up to say that that is why lawyers should not use cloud computing.

Maybe the audience were too busy tweeting photos of their hotel rooms. Or maybe the balance between almost unstoppable technology on the one hand, and strict interpretation of lawyers’ principles on the other, is being recalibrated by the leaders of our profession – with potentially interesting consequences for the future.

Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs