ABA Formal Opinion 498: What You Don't Know (About Practicing Law Virtually) Can Hurt You...Professionally

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Most of us, even old-timers, changed the way we practiced law when the Coronavirus pandemic hit.  We stopped going to the office (as much), we worked remotely (a lot), and we video-conferenced a whole bunch (before March 13, 2020, I could count the number of Zoom conferences in which I was involved on one hand).  Even though things are opening up, some of the conveniences and efficiencies that we learned in a virtual practice are sure to continue.

On March 10, 2021, the Standing Committee on Ethics and Professional Responsibility of the American Bar Association released Formal Opinion 498.

This Opinion defines and addresses virtual practice:

This opinion defines and addresses virtual practice broadly, as technologically enabled law practice beyond the traditional brick-and-mortar law firm.  A lawyer’s virtual practice often occurs when a lawyer at home or on-the-go is working from a location outside the office, but a lawyer’s practice may be entirely virtual because there is no requirement in the Model Rules that a lawyer have a brick-and-mortar office.  Virtual practice began years ago but has accelerated recently, both because of enhanced technology (and enhanced technology usage by both clients and lawyers) and increased need.  Although the ethics rules apply to both traditional and virtual law practice, virtual practice commonly implicates the key ethics rules discussed below.

The Opinion addresses commonly implicated rules of professional conduct, referencing specifically the ABA’s Model Rules of Professional Conduct as amended by the ABA House of Delegates through August 2020.  In summary, bullet-point fashion, the Opinion alerts that:

  • Concerning Competence, Diligence, and Communication “a lawyer should keep abreast of changes in the law and practice, including the benefits and risks associated with relevant technology . . . “
  • Confidentiality requires “reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of the client.” The Opinion lists a number of factors to be considered by the lawyer, but generally concludes that the lawyer may communicate about the client’s representation over the Internet if reasonable efforts were made to prevent unauthorized or inadvertent access.
  • Supervision, exercise of managerial authority, in a virtual practice still requires reasonable efforts to “ensure that subordinate lawyers and non-lawyer assistants comply with the applicable Rules of Professional Conduct.” Lawyers are required to provide appropriate instruction and supervision concerning the ethical obligations of their employment, including the obligation to safeguard the client’s confidences.

The Opinion provides guidance concerning particular practice technologies and considerations.  Issues concern hard/software systems, accessing client files and data, virtual meeting platforms and video conferencing, virtual document and data exchange platforms, and smart speakers, virtual assistants and other listening enabled devices are presented and guidance provided.  The Opinion also lists possible limitations of virtual practice.

The Opinion concludes:

The ABA Model Rules of Professional Conduct permit lawyers to conduct practice virtually, but those doing so must fully consider and comply with their applicable ethical responsibilities, including technological competence, diligence, communication, confidentiality, and supervision.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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